The Supreme Court is always the elephant in the room at the State of the Union address, holding incredible power over the policies that a president puts forth to the backdrop of standing and clapping members of Congress.
So even though the court’s justices mostly just sit there in quiet awkwardness — Justice Samuel Alito was a notable exception to this during Barack Obama’s 2010 address — I’m always interested to see which justices attend. On that note, one particular jurist caught my eye last night: a retired justice, Anthony Kennedy.
The Reagan appointee was there along with recent high court retiree Stephen Breyer and their respective replacements, Brett Kavanaugh and Ketanji Brown Jackson, as well as Chief Justice John Roberts and Justices Elena Kagan and Amy Coney Barrett.
Kennedy’s quiet presence struck me because, for decades, the Republican appointee wielded significant power over all our lives as the swing justice on a divided court, helping to dole out rulings that went both ways politically.
Indeed, Kennedy’s tenure came into sharp relief in last summer’s Dobbs decision that overturned Roe v. Wade. Dissenting in Dobbs, the three Democratic appointees at the time — Breyer, Kagan and Sonia Sotomayor — saluted Kennedy and other justices who had previously upheld Roe as “judges of wisdom.” I have a hard time joining that misty-eyed tribute to a justice who helped form majorities in two of the court’s most dubious rulings — Citizens United in 2010, the Kennedy-authored opinion that prompted the Obama-Alito moment at that year’s State of the Union, and the 2008 Heller gun case that set the stage for last term’s Bruen ruling. Bruen, of course, was delivered by a 6-3 majority that included Kennedy’s replacement, Kavanaugh, and the even more significant change of Barrett replacing Ruth Bader Ginsburg. But the fact that today’s Democratic minority (with Jackson now subbed in for Breyer) pines for the days of Anthony Kennedy shows how dangerously far right this court has gone.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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