Retired Justice Anthony Kennedy, who authored the Supreme Court’s money-in-politics decision in Citizens United v. FEC, is very worried about the future of democracy.
“Perhaps we didn’t do too good a job teaching the importance of preserving democracy by an enlightened civic discourse,” said Kennedy, who gave Donald Trump — a man who bragged he can grab women “by the pussy” without their consent because he is famous — the opportunity to appoint his successor.
Kennedy, who provided the key fifth vote to strike down much of the Voting Rights Act in Shelby County v. Holder, made his remarks at a high school in Sacramento, California, which he visited to celebrate Constitution Day.
Remember, this is the same man who voted in Crawford v. Marion County Election Board to allow a state voter ID law to take effect, despite the fact that voter ID laws disenfranchise thousands of voters to solve a problem that is only slightly more common that fire-breathing dragons. Voter ID laws ostensibly target in-person voter fraud at the polls, but the opinion Kennedy joined in Crawford was only able to identify one example of such fraud in the previous 140 years.
Indeed, Kennedy has probably done more to undermine democracy in the United States than any other living American. More so than Donald Trump. More so even than Mitch McConnell.
Just last June, Kennedy provided the key fifth vote to make it nearly impossible to win a voting rights case, alleging that lawmakers acted with racist intent when they passed an election law.
Of the five justices in the majority in Bush v. Gore, only one is still on the Court today — Justice Clarence Thomas. Thomas is also the only other living justice who voted with the majority in Bush, Citizens United, Crawford, and Shelby County.
Thomas’ views are undoubtedly more radical than Kennedy’s, including on voting rights, but Thomas is very much on the right flank of the Supreme Court, and has minimal influence over his colleagues. Kennedy, by contrast, was often the deciding vote in voting rights cases and he typically voted with Thomas and the other members of the conservative bloc.
Kennedy also wielded his influence within the Court to move at least one key decision far to the right. In Citizens United, which allowed corporations to spend unlimited money to influence elections, Chief Justice John Roberts initially wrote a majority opinion on much narrower grounds.
Yet, as the New Yorker’s Jeff Toobin revealed, Kennedy was dissatisfied with this narrow result and circulated a concurring opinion calling for a much broader dismantling of campaign finance laws. As a result, “Roberts withdrew his own opinion and let Kennedy write for the majority. Kennedy then turned his concurrence into an opinion for the Court.”
So when Kennedy makes the case that we are living through a frightening period of democratic decline, he speaks with authority: at least in the United States, much of that decline is his fault.