Let’s be fair, shall we? His votes in favor of LGBTQ rights from Lawrence v. Texas to Obergefell v. Hodges undeniably advanced the cause of equality for LGBTQ people. And the way that he writes about LGBTQ people would give the impression that he is deeply concerned about LGBTQ rights.
For example, this is what he wrote in the majority opinion in Obergefell:
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
Lovely, right? Certainly we thought so at the time, lauding Kennedy for recognizing that love is love and that gays, lesbians, and everyone else should be able to marry. Sure, it’s a conservative vision of love, rooted in patriarchal institutions. Still, though: It remains an important decision, and that passage makes us tear up.
But given his retirement announcement and his abominable performance during this year’s Supreme Court term, those words have proven ultimately toothless. Because by retiring now—before the 2018 midterms—he has ensured that Senate Republicans will try to ram a Trump nominee through the confirmation process before the new congressional session begins in January. Republican Senate Leader Mitch McConnell has already promised as much. And that nominee is not going to be a friend to the LGBTQ community. It’s more likely than not that open hostility to LGBTQ rights will be an important qualifier for anyone Trump chooses to replace Kennedy.
By retiring now, Kennedy has almost certainly thwarted Democrats’ chance to wrestle control of the Senate from Republicans and therefore keep them from confirming another right-wing extremist this year. He basically screwed us all. It seems purposeful, not to mention hurtful to the LGBTQ people in the United States who have come to rely on him to advocate for them.
And yes, the Court is not supposed to be partisan or to concern itself with who is president and who might replace them. But the truth of the matter is that is bullshit: When a Supreme Court justice chooses to retire says a lot about their priorities. Whatever Kennedy’s priorities are, saving his legacy doesn’t seem to be one of them.
If Kennedy truly cared about LGBTQ rights, he would have stayed on long enough to ensure that he would be replaced by someone who shared that (somewhat feckless, let’s be honest) commitment.
But he didn’t.
Either he doesn't care about his legacy now, or he never cared about it then. Either way, that legacy will be gone as Obergfell and Lawrence and his many other 5-4 decisions are wrecked within a few short years.
When abortion, same-sex marriage, and even birth control options are unavailable in half the states and only "nearly impossible" to get in the other half, will Kennedy still be around to give a damn?
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