Kennedy’s court no more

Last week, Justice Anthony Kennedy delivered a crippling blow to the Democratic Party. In Janus v. AFSCME, Mark Janus sued to avoid paying mandatory union fees. Janus is a government employee who does not support unions. In Illinois, he was obligated to pay fees to the AFSCME despite not being in the union.

The union argued Mr. Janus benefited from the union’s agreements with the government and he should have to pay fees. Mr. Janus argued he wanted no part of those benefits and could negotiate his own employment contracts. Additionally, his fees were objectively going to pay for political expenses of the union that he disagreed with.

Kennedy led a 5-to-4 Supreme Court siding with Mr. Janus. Even Justice Elena Kagan acknowledged the financial blow the unions. Subsequent commentary has all mentioned how this will hurt Democrats. The truth is public sector unions have forced non-union members to subsidize the Democratic Party and that era is now over.

If that was not enough, Kennedy then retired. Many liberal activists and commentators were enraged. Norm Ornstein, the resident liberal of the otherwise conservative American Enterprise Institute, rushed to Twitter to proclaim, “Anthony Kennedy has now cemented his legacy. Not as a ‘centrist’ or ‘swing vote.’ As a partisan Republican who single-handedly blew up the campaign finance system, dissembled about his desire to deal with partisan gerrymandering. And, as dessert, devastated the Voting Rights Act.”

Had Kennedy retired under a Democrat president, Ornstein would be singing his praises as would most other left leaning commentators. That they refuse to do so now says more about them than an 81 year old who is ready to retire from public life. But the meltdown over Kennedy says something else, too. The Supreme Court has become too powerful and Kennedy does deserve a lot of the blame. In his final concurrences, Kennedy seemed to hint at retirement. He opined on the government knowing its place and declared some issues stretched beyond judicial remedy.

During his tenure on the court, however, Kennedy sought to make himself the most powerful man in America. A generation of law school students have been taught how to argue just to placate Kennedy. He knew no area where the court’s role could not be asserted. Now, however, he finally realizes he cannot solve all the world’s problems. In fact, last year several very close friends of Kennedy told me he intended to retire then. But, I was told, Kennedy got spooked by President Donald Trump’s Twitter tirades at the end of the last Supreme Court term. Now, Kennedy has realized it is more than the president. There is a cultural mess made messier by so many believing the courts can fix all our national ills. Kennedy decided it was time to let go.

At the top of President Trump’s list for replacing him is Amy Coney Barrett. If nominated and confirmed, she would be the only member of the court who did not go to Harvard or Yale. Democratic senators have attacked her for being too religious, despite a prohibition in the constitution on religious tests for government service. She has been attacked for her Catholic faith and her conservative views. Feminists hate her, though she is a woman. In other words, she is the perfect pick for Trump — one who will signal to President Trump’s base he stands with them while causing the left to fly into fits of hysteria.