Justice Kennedy Speaks to Us

Justice Anthony Kennedy’s retirement announcement drowned out important paragraphs he has given the world in Trump v. Hawaii, the travel ban case. 

A Supreme Court majority upheld the President’s third declaration of his famous (originally labeled Muslim) travel ban, previously supported by a variety of racist and anti-religious statements, including statements on the president’s campaign web site taken down only after the president issued the two declarations preceding his third travel ban proclamation. 

Justice Kennedy’s short concurrence is the most telling statement of a high US civil officer since the election of Donald Trump. 

In Trump v Hawaii, Chief Justice Roberts:

  • found massive power, inherent and granted to the President by Congress to ban classes of aliens from entry; and
  • chose to find that President Trump’s anti-Muslim statements and early-expressed intent were somehow unimportant because the Executive Branch ultimately rewrote the last travel ban.

Justice Kennedy, agreeing with four of the Justices to form a majority of 5, said the judiciary could not stop the President on this case, but the sad Justice also seemed to explain: folks, you’ve gotta do something. The Judiciary cannot do it. 

There’s only one Brach of government left. Congress. 

From the short Kennedy concurrence in Trump v Hawaii:

“In all events, it is appropriate to make this further observation. There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects. The oath that all officials take to adhere to the Constitution is not confined to those spheres in which the Judiciary can correct or even comment upon what those officials say or do. Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.”

Thus begins for this reader a firm, quiet, sad plea to discuss impeaching the President, since the Supreme Court has held that not all unconstitutional presidential misconduct is within Judicial power to curtail. 

Unquestionably, Justice Kennedy knows that Congress is the Constitutional branch of government with special, non-appealable, “sole” power to impeach — in a variety of circumstances involving serious harm to our society or system of government — for example, if the President of the United States violates the Constitution, including the Presidential Oath to preserve, protect and defend the Constitution.

Indeed Justice Kennedy joined with CJ Rehnquist in a most important impeachment case (unanimously decided) making clear that the Congressional impeachment process was not appealable. (Walter L. Nixon, Petitioner v. United States). 

After the Justice Kennedy’s  Travel Ban discussion of presidential power uncontrolled by the judiciary, the retiring Justice gets specific as to the scope of First Amendment protections:

“The First Amendment prohibits the establishment of religion and promises the free exercise of religion. From these safeguards, and from the guarantee of freedom of speech, it follows there is freedom of belief and expression.”

Then, the Justice makes clear our current emergency in the context of foreign and domestic affairs:

“It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs.”

The need is absolute for preservation of Constitutional liberties, Justice Kennedy insists, bringing to mind existential threats this country faces:

“An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”

We should listen to Justice Kennedy. The only branch left is Congress. Please vote in the midterms for a Congress willing to use its powers to check presidential abuses, up to and including hearings concerning impeachment.