After Wednesday’s surprising news regarding the retirement of Associate Justice Anthony Kennedy from the Supreme Court, Donald Trump could cement himself as a conservative icon with a selection of a second justice that will seismically swing the High Court to his favor. This comes on the heels of his 2017 nomination of Justice Neil Gorsuch, who just completed his first year on the Court and is already establishing himself as a committed originalist.
Kennedy, a civil libertarian, is stepping down before the 2018 midterm elections, allowing the President sufficient time to nominate under a secured Republican-majority Senate. Kennedy left a lasting impression on the Court and, if Trump’s selection bodes well, Trump could leave an even larger one.
The legacy Kennedy left is an ideological shift. According to Anthony Kennedy, “At the heart of liberty is the right to define one’s own idea of existence, of meaning, of the universe, and of the mystery of human life.” This statement continues what conservative legal scholar Robert George called the Nietzscheanization of the Supreme Court, a belief first touted by Oliver Wendell Holmes that replaces objective morality with personal values at the judicial level. This will ultimately be Kennedy’s legacy.
For evidence, look no further than the Obergefell case of 2015, which might be described as the most far-reaching decision to date on which Kennedy’s aforementioned modus operandi was put into full political effect, consequences be damned.
While Justice Anthony Kennedy’s views have made contesting the left’s increasingly radicalized apprehension of sovereignty and freedom nearly impossible, Kennedy is stepping down just as the Western liberal project is at its most volatile. In 1987, Reagan could not achieve a total right-wing takeover of the highest court, because of a growing secular zeitgeist. Thirty years onward, liberal monopolization of the culture is considerably more pervasive and yet Trump has the opportunity to achieve a victory that Reagan couldn’t.
Kennedy must realize that if Trump nominates anyone even remotely in the vein of Neil Gorsuch, his legacy, his promotion of Nietzschean ideals, hangs in limbo. Even more, he must face a desecrated citizenry that has had to deal with the disastrous effects this decision wrought.
Maybe Kennedy believes our ship will continue to navigate the seas of nihilism and self-created values for years more; that certainly would protect the crux of his legacy. However, political events, responding to the exceedingly heterodox view about liberty created by Kennedy and co., have their way of reorienting— violently, if necessary— us back to the shores of ordered, natural law. No political regime, particularly one long stricken by the disease Kennedy helped impart, can sustain anchored by nothing more than nihilistic gobbledegook.
Which, lastly, brings us back to President Trump— who, despite negotiating a much more compromised culture than Ronald Reagan, has the means to establish the conservative court his predecessor could only dream of. Plenty of time, a Republican-majority senate, and a schizophrenic political opponent in the liberal left make for a perfect storm of possibilities to engender an authentically conservative Supreme Court. If President Trump delivers (and all indicators seem to be in his favor), certainly be on the lookout for even more sizable changes to the polity than even the ones heralded by the Neil Gorsuch court of the most recent term.
Conservatives have all the pieces with a (truly) five-member conservative majority to deal blows for constitutional law and undo the radical libertarianism concocted by Anthony Kennedy. This would cement President Trump as the most influential architect of Constitutional Law in the modern era. The cards are well stacked in favor of Republicans; it’s absolutely imperative that conservatives capitalize on this opportunity.