My thoughts in the Washington Post (check here for the full op-ed):

The Supreme Court teaches us about liberty, dignity and democracy. It safeguards those principles and helps make the Constitution real in our lives. Justice Anthony M. Kennedy has devoted his judicial service to that vision. But by retiring in this perilous moment, he has unleashed forces that will test the court like never before.

These are dark days in America. Tribalism, kleptocracy and intolerance stalk the land. The White House is besieged with credible accusations of criminality and corruption. Many have lost faith in their institutions of government. Democracy itself seems besieged. 

Yet even in this cynical age, the court has maintained formidable public support. Kennedy is an essential part of that story. 

For decades, as one of the court’s more influential members, he has worked to keep it on a (relatively) even keel. Whereas too many Americans demonize those with different views, he places civility, good faith and open discourse at the heart of his worldview. As bitter partisanship consumes Congress, he stands firm in his devotion to judicial independence. 

Most importantly, Kennedy remained singularly open to a wide range of views on controversial issues. He recognized that the Constitution encompasses many values — some of them in tension with others — and that we must learn from experience. “The nature of injustice is that we may not always see it in our own times,” he once wrote. These are words he lives by. 

Wrongly derided by critics as a lack of principles, this open-mindedness is one of Kennedy’s great virtues. More than most judges, he felt the force of competing constitutional values and institutional pressures. His judgecraft thus contained a distinct note of statesmanship. If his views evolved and admitted ambiguity, so be it: Rigid adherence to an all-encompassing orthodoxy is not the true test of a great jurist.  

This character trait has benefited the court and the nation. With Kennedy as a frequent swing voter, Americans of all persuasions knew their voices and values would receive serious consideration by a key decision-maker — one who was not strongly inclined for or against them from the very outset. The outcome of many cases has been a mystery until the very end.  

. . . 

As a result, [Kennedy's] retirement will spark chaos. Keen to reshape American life on a startling scope and scale, conservatives will race to confirm a reliable vote. Things will get ugly — very ugly. Roe v. Wade hangs in the balance. So do many other famous precedents. 

Accordingly, the court’s very legitimacy is now up for grabs. Signs suggest that President Trump aims to move the court so far to the right that half the nation will inevitably deem it an avowed enemy.

The confirmation battle ahead will place the court under crushing pressure. And if the result is a muscular, immodest conservative majority, the center will not hold.  

The future now rests with Chief Justice John G. Roberts Jr., who has shown sustained concern for the court’s legitimacy, but whose votes place him far to Kennedy’s right. Will his court truly remain open to all Americans? Or will it speak for only one viewpoint?

As Kennedy recognized, the court teaches us all about democracy. It can define how we live. We can only hope that Kennedy’s insight carries on as the court steps toward a newly uncertain future.

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