It is not uncommon to hear from left-leaning advocates and activists that Brett Kavanaugh’s confirmation hearings are having a galvanizing effect on Democrats. But in politics, as in physics, every electrifying event has an equivalent effect on the other side. For the first time since Donald Trump tore the conservative movement apart, Republicans and conservatives are in striking agreement. Namely, they are appalled by how this process has been conducted. Conservatives are unified, and they’re angry.
Cynical liberal political observers will attribute this sentiment to the prejudices that they believe prevail within the conservative firmament. These are polemicists, not pundits. For anyone who is genuinely interested in how this moment has been clarifying for conservatives, we should consult a doctrinaire liberal’s attack on another justice: Anthony Kennedy.
In a speech before a group of students last week, Kennedy lamented the decaying of democratic systems across the globe, the increasing appeal of illiberal political philosophies, and the decline of civil discourse. “In the first part of this century we’re seeing the death and decline of democracy,” he said. But the retired justice has no license to talk on this phenomenon, wrote New York Magazine’s Eric Levitz. Kennedy himself is, according to the title of Levitz’s article, an “enemy of democracy.”
The litany of grievances Levitz marshals in his condemnation of the Supreme Court’s formerly perennial “swing justice” is vast, and not limited to reports that he vouched for Kavanaugh. Among the conclusions Levitz reaches to support his attack on Kennedy is that the retired justice was, at best, indifferent toward systematic racial discrimination. In 2013, for example, “Anthony Kennedy chose to err on the side of disenfranchising black people.”
That’s Levitz’s assessment of Kennedy’s decision to join the majority in Shelby County v. Holder. In that case, the Court ruled that the Voting Rights Act’s 40-year-old assessment of which parts of the country couldn’t be trusted to reapportion their constituents fairly was unconstitutional because it was so dated. If Kennedy is a monster because he decided that reparative racial justice in America should not be frozen in 1965, he’s in good company.
In 2008, eight of the Court’s justices, including all its liberal members, joined the majority opinion authored by Chief Justice John Roberts, which preserved the VRA but with a warning. Roberts noted that Sections 4 and 5 of the VRA were intended to be temporary, but Congress has repeatedly declined to update the law’s coverage provisions. “The evil that [Section 5] is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance,” Roberts wrote. “The statute’s coverage formula is based on data that is now more than 35-years-old, and there is considerable evidence that it fails to account for current political conditions.” Contrary to Levitz’s assertions, some legal scholars speculated that it was, in fact, Kennedy who prevented the Court’s ruling in this case from being broader. But Congress did not act, and Kennedy could not hold out forever.
Levitz goes on to explain that Kennedy isn’t just racially suspect but potentially genocidal. In the author’s estimation, the retired justice’s decision to join two of his conservative colleagues and dissent from a ruling that upheld the individual mandate to purchase health insurance in the Affordable Care Act gave support to a policy that sent “tens of thousands of [people] to preventable deaths.” But the 115th Congress successfully repealed the individual mandate, the least popular provision of the ACA, in 2017. Presumably, Levitz believes that the entire Republican political establishment is, therefore, complicit in these forthcoming deaths, even if the bodies have been slow to pile up in the streets.
At this point, Levitz pivots to a lightning round. He attacks Kennedy’s decision to strike down state and federal campaign-finance provisions as inconsistent with the First Amendment because the voters wanted to circumvent the Bill of Rights. He calls the overturning of former Virginia Gov. Bob McDonnell’s conviction for accepting gifts from constituents the legalization of “most forms of political bribery. Levitz declines to note that the Court overturned McDonnell’s conviction explicitly because he had broken no law. Levitz labels the Court’s decision to allow companies to mandate adjudicating certain arbitration claims in an individual rather than collective setting an assault on the “capacity of consumers and workers to sue corporations that abuse them.” But even in her dissent, Justice Ruth Bader Ginsberg conceded the majority is right that the National Labor Relations Act “does not express approval or disapproval of arbitration” and urged Congress to address the matter.
Levitz has done a great service by declaring his full-throated opposition to Kennedy’s “libertarian conception” of individual liberty, though few conservatives would describe the “swing justice” as an individualist. He doesn’t just disagree with the conservative philosophical opposition to statist or anti-federalist provisions in law. Levitz appears to think they are grotesque attacks on human freedom and development. These are not just legal views to which Levitz is opposed. They are, in his estimation, immoral beliefs and there can be no accommodation or compromise with them. This is the definition of radicalization.
For the right, these last few weeks have not been about Brett Kavanaugh. They’ve been about an effort to expand the rules of engagement and establish new precedents only to prevent a conservative jurist from taking a seat on the Supreme Court bench. That is a threat to which any prospective textualist justice is vulnerable. If anyone wants to understand why the conservative movement has suddenly rediscovered their bonds of comradeship, they should look no further than Eric Levitz’s latest.