Anthony Kennedy and the Court of Lost Resort

Photo by White House Photographic Office | CC BY 2.0

These occasions don’t come round all that often, so we should pause for moment amid the daily traumas of Trumptime to celebrate the departure of Anthony Kennedy from the Supreme Court. With Kennedy’s exit, the high bench will finally be cleansed of the last remnant of Reaganism, a judicial contagion that has gnawed away at the legal foundations of the Republic for the past 37 years, since Reagan appointed Sandra Day O’Connor to replace Potter Stewart in the summer of 1981. Over eight years, Reagan remade the federal judiciary from top to bottom by appointing 383 judges, more than any other president.

O’Connor’s elevation to the bench was followed by Reagan’s decision to enthrone the austere William Rehnquist as Chief Justice in 1986, followed four days later by the nomination of fire-breathing Anton Scalia to the slot vacated by Warren Burger.

When center-right justice Lewis Powell, author of the notorious Powell Memoranda that charted a corporate counter-attack against the regulatory state, stepped down in the summer of 1987, Reagan nominated Robert Bork, the bearded conservative who served as Nixon’s executionor in the Saturday Night Massacre. But Bork’s nomination was, well, Borked, by an uppity senate which was, after six years, finally beginning to push back against Reagan with Teddy Kennedy leading the charge. Next Reagan turned to the wonkish Douglas Ginsburg. a former Harvard Law professor whom…

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