Earlier this year, Michael Brendan Dougherty wrote a fascinating column about how he’d come to the view that Anthony Kennedy, although his jurisprudence is “ridiculous” and his self-regard “utterly repulsive,” might occupy a central place in our constitutional regime simply by keeping progressives from radically turning against it.
We’ve kicked this idea around some on The Editors podcast. I believe that Michael is too pessimistic, and, obviously, we can’t let the Left’s lunacy keep us from seeking a constitutionalist court. But we are already seeing some of the effect Michael wrote about. There’s been more insistence on the Left that we live under “minority rule.” E. J. Dionne wrote vaguely of not letting civility get in the way of resisting a Kennedy replacement by any means. Dana Milbank wrote of his hope that the coming backlash over Trump replacing Kennedy “will explode, God willing, at the ballot box and not in the streets.” And there is talk, when Democrats take power again, of packing the court, one of the tactics that Michael predicted that Democrats might eventually resort to.
We’re going to hear much more of this, especially about “minority rule,” in the coming years. Where it could become truly dangerous is if Trump wins reelection and gets a couple of more Court picks and there is a sustained controversy of the intensity of the recent fight over family separations at the border. Then, you could see the Left convincing itself that we need some version of a color revolution in America or, as Michael wrote in his column, no-kidding resistance by blue states to federal authority. The consensus that undergirds our constitutional system has long been eroding, but it’s not inconceivable now that it could completely break down.