David Paul Morris/Getty Images on the bench Anthony Kennedy Was No Moderate Progressives mourning his departure from the Supreme Court have the guy all wrong

Rahm Emanuel is the former mayor of Chicago, former White House chief of staff, and former member of Congress from Illinois.

Conventional wisdom holds that Justice Anthony Kennedy was a moderate whose rulings hewed down the center of the fairway with the centrist wisdom of a modern-day King Solomon. I don’t buy it. Neither should you.

To paraphrase a famed retort, I have known moderate Supreme Court justices, I have worked with moderate Supreme Court justices, moderate Supreme Court justices have been friends of mine, and Anthony Kennedy was no moderate Supreme Court justice.


Although he wrote the majority decision in favor of marriage equality and cast crucial votes for reproductive rights, Justice Kennedy sided far more often with the powerful over the vulnerable. In opinion after opinion, he ruled in favor of corporations over average people and Big Money interests over the best interests of our democracy. Of the 35 justices who have served since World War II, Kennedy was the sixth most reliable pro-business vote. How’s that moderate?

With all the whitewashing of a staunchly conservative record that has been going on lately, it would be easy to forget that Kennedy cast the deciding vote in some of the most consequentially disastrous decisions of a generation. That’s right: This is the “moderate” who gifted a presidential election to George W. Bush on a silver platter in Bush v. Gore. In 2000, the popular vote did not count. It was Kennedy’s decisive vote from the bench that mattered.

This is the “moderate”’ who wrote for the majority in Citizens United v. FEC. He conflated money with speech and corporations with people. Wrong on both counts. That decision overturned a century of campaign finance law and opened the floodgates for unlimited special interest money, including from overseas, to flow unchecked into our elections. The results prove it. In 2016, 25 percent of the money spent on presidential and congressional races came from groups “with access to unlimited and unrestricted sources of funding.”

Kennedy is the “moderate”’ who last month handed powerful corporations yet another significant victory, in another 5-4 decision, in the case of Epic Systems Corp. v. Lewis. It made it more difficult for workers to seek recourse against employers engaged in wage theft and discriminatory pay practices.

Just last week, on his way out the door, Kennedy sided with another 5-4 majority to upend decades of precedent and progress for organized labor in Janus vs. AFSCME. It was a parting shot to workers before heading off to his own taxpayer-secured retirement.

I do not overlook the positive aspects of Kennedy’s legacy. I have fought for women’s rights and gay rights my whole life. But a few good votes that are close to my heart do not blind my eyes to a fundamentally reactionary record. They should not obscure your opinion of Kennedy’s tenure either.

The politically correct Beltway view that ce Kennedy stands among true moderates, like Justices David Souter and Lewis Powell, to name just two, is in fact a sign of how far the political center has moved to the right.

The costs of Kennedy’s decisions, and their unforeseen consequences, will reverberate for years to come. Overruling the popular vote in Bush v. Gore brought us the Iraq War. Overturning every post-Watergate campaign finance reform in Citizens United brought us the best democracy money can buy.

The American people deserve a Supreme Court justice who will stand firmly with us, not consistently throw in their lot with the country’s most powerful interests.

President Barack Obama nominated just such a jurist in Merrick Garland. Mitch McConnell robbed my old boss of his constitutional right to put forth his pick for the high court on the flimsiest possible grounds that it was an “election year.” In this election year, with Senator McConnell’s rank hypocrisy already exposed for the world to see, will the Senate confirm a judge even further to the right than Kennedy? If President Donald Trump has his way, the court will continue its rightward shift and leave the rest of us behind.