Let our next greatest achievement be realizing the dream of full equality for all of us ...

- Human Rights Campaign President, Alphonso David, as reported by Maiysha Kai -

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We’re Fucked

President Donald Trump
President Donald Trump
Photo: Olivier Douliery-Pool (Getty Images)

Donald Trump will have a second opportunity to convert the U.S. Supreme Court into a white supremacist bastion for generations to come after Justice Anthony Kennedy retires in July.

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Kennedy’s retirement will certainly shift the high court ideologically far right, raising concerns that the president’s choice to replace Kennedy will provide legal cover for his most extreme policies on immigration, unions, policing and other issues of importance to people of color.

But Kennedy is not an easy justice to analyze.

Honestly, the first words I shouted when I saw that Kennedy was leaving the bench was, “We’re fucked.” Then I got to thinking and Googling and then realized that while allowing Trump a second shot at a Supreme Court pick sucks, Kennedy is not the liberal hope some of us think him to be.

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As Mother Jones points out, Kennedy has recently voted in support of Trump’s most bigoted stances:

But the 2017 term has put the lie to the idea that Kennedy is liberals’ best hope to save the country from the type of conservative judicial activism embraced by Trump’s first Supreme Court appointee, Neil Gorsuch. The most recent court term has seen a host of contentious, high-stakes cases that have resulted in 5-4 decisions 17 times. In all 14 of those cases that have split along ideological lines, Kennedy has sided with the court’s conservative justices. His vote on Tuesday to uphold Trump’s travel ban followed his vote a day earlier to approve racial gerrymandering in Texas, and one three weeks prior to allow a business to discriminate against LGBT customers.

In other words, for all the liberal fears that Kennedy will be replaced with someone like Gorsuch, the ideological distance between Kennedy and Gorsuch is vanishingly small.

A Ronald Reagan appointee, Kennedy was seen as a moderate and did support some liberal causes, like helping to save Obamacare and limiting the death penalty, as The Hill notes. But in general, he tended to vote more on the conservative side than not and, often, in favor of Trump, as the Washington Post observes:

He sided with conservatives in cases that keep workers from banding together in group arbitrations, allow the purging of occasional voters from the rolls and overturn a 40-year precedent that allows public sector unions to collect mandatory dues. And he was in the majority in fewer cases than Chief Justice John G. Roberts Jr.

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That said, Kennedy was a swing voter (no matter how flawed), and there were times when you could hope that he might vote in favor of liberal causes. I mean, can we really depend on a Trump appointee to vote in favor of gay rights, Obamacare and other issues? Here are some thoughts on what could be lost with Kennedy’s departure:

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Indeed, Trump is likely to nominate a virulent bigot, and that will be a very bad thing. We can’t, however, ignore the fact that the final days of Kennedy’s time on the bench saw him supporting a bigoted president’s policies. We also cannot ignore the fact that Kennedy did vote against harsh criminal sentences and attacks against women’s reproductive rights—he voted to uphold Roe v. Wade. Thus, his recent decisions—wrong as they were—do not diminish the votes he cast in favor of helping people of color, women and groups who face discrimination because of their sexual orientation.

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That means something.

Say what you will about Kennedy, but Trump will not appoint anyone who will remotely pretend to consider a woman’s right to choose, affirmative action or LGBTQ rights. Kennedy could be counted on to at least be a swing vote.

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With Trump, the high court’s ideological pendulum will swing far right. That’s a fact. So Kennedy’s departure will surely remind us of his ill-advised votes, but it should truly remind us of the fact that his replacement will be far worse—as in Ku Klux Klan worse.

We’re fucked, no matter how we slice it, fam.

Terrell Jermaine Starr is a senior reporter at The Root. He is currently writing a book proposal that analyzes US-Russia relations from a black perspective.

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DISCUSSION

kccomplainsalot
KC Complains A Lot

The rest of us in 2016: This election is bigger than your dislike of Hillary Clinton, they’re going to affect the Supreme Court and push us further right then you could even begin to imagine, for decades to come.

White liberal men: Nah, she’s just as bad.

White liberal women: But what about her e-mails.

Flash forward to 2018

White people: OH MY GOD, THIS IS A DISASTER!

The rest of us: