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The Sjupremes

Why did 81-year-old Justice Anthony Kennedy, known best for his decisions protecting gay and abortion  rights,  choose to retire at the time that best enables Donald Trump to appoint a right wing successor who will most likely vote to reverse those decisions?  Adam Liptak and Maggie Haberman  of the New York Times give us the answer.  Trump  “guiled” him.

Liiptak and Haberman outline a  “flattery” campaign aimed at convincing Kennedy his legacy would be honored.  A key pressure point was Justice Kennedy’s affection for his former clerks.   Trump’s first Supreme Court nomination was Neil Gorsuch, a former Kennedy clerk.   Kennedy himself was chosen to give Gorsuch the judicial oath at his swearing in, an occasion that permitted  Trump to lavishly praise Kennedy (“a great man of outstanding accomplishment”).

Then the White House announced two sitting federal judges were being considered  candidates for the next Supreme Court vacancy; they too had been Kennedy clerks.   And Trump also managed in his first year to appoint three other former Kennedy clerks to  federal appeals courts.

Trump also reminded Kennedy that they had a personal connection (“Say hello to your boy– a special guy”).   Kennedy’s son, Justin, had been Trump’s banker for many years.  When Kennedy later reciprocated the attention by inviting  Trump’s daughter Ivanka and her young daughter to be his personal guests at the Supreme Court,  Ivanka  tweeted  their gratitude for being able to see “our legal system firsthand.”

All the steps in Trump’s serenade of  Kennedy are  examples of  guile– clever, disingenuous ploys designed to accomplish an unannounced goal.   Liptak and Haberman are quick to point out that there is nothing unethical in their use.  I agree.  Flattery, even insincere flattery, is a  well-established  part of  social intercourse.

There is no shame in being the perpetrator of guile, but also no honor in being its willing victim.



  1. Richard Boswell says

    True John about the flattery, but should Kennedy have revealed the family business connection with Trump Enterprises. I realize that the Supreme Court has different rules on recusal, that leave it up to each justice to determine.


  2. Richard Boswell says

    Another thought about Kennedy’s decision was that he did not have much confidence that Republicans would keep the Senate after the mid-terms. Therefore he wanted to retire and get at least another conservative replacement he had better do it now or he would have to wait another 2 years. Also note that his retirement was not contingent on a replacement, he will be gone and the court will have 8 justices. So while it may be true that he was guiled into retiring, it might have been a reflection of his sense of the politics that propelled him into doing it now.


    • It’s true that you can portray most of Kennedy’s record as that one more Reagan Republican judge, but I think the notices he got for his gay rights and abortion decisions were very important to him, and he will be sorry that now his “legacy” may well be that he contributed to their demise in return for a little cheap attention.


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