Losing Hope But Still Fighting

For many of us, the retirement of Justice Anthony Kennedy marks only the latest in what seems like an endless series of punches to the gut. Though Kennedy was hardly a reliable vote for the “correct” outcome, he made a difference in many cases. In 1992, when many of us feared that the U.S. Supreme Court would overturn Roe v. Wade, he (and Justice Sandra Day O’Connor) found a way to keep the worst from happening. The outcome of that case was not a victory I celebrated, but it prevented something I feared.

In many respects that will be Kennedy’s legacy. More often than favorable results, he offered us hope — a chance to believe that we would get a fair hearing and outcome from the highest court. He was the justice we “hoped” would do the right thing. Let me be clear, he was not a centrist; he was a rock-ribbed conservative. And, more often than not we were left disappointed by his decisions. But even in our disappointments, we still hoped that he would be with us next time.

What is most difficult about his retirement announcement is that the hope he offered — however slim — seems like it is gone, perhaps for a generation. No one on the left or right honestly believes that in the most important cases of our times Justices Clarence Thomas, Samuel Alito or Neil Gorsuch or Chief Justice John Roberts are really persuadable. Nor is there any prospect that the new Trump appointee will be.

I have litigated enough cases where I look at who the trial judge is or at the composition of a three-judge panel and think that there is no chance that I will win. In those cases, I have told my clients that we have no hope unless we get to the Supreme Court, and then maybe we can persuade Kennedy. What is saddest now is that hope seems gone for the foreseeable future, perhaps for the rest of my legal career.

So now what? We must continue to fight. We must continue to bring cases. We must continue to do everything we can do to make the legal system work for justice for all. We will now have to do so without the hope of Kennedy, but we cannot not give up.

Lawyers ask me all the time what they can do to fight against the awfulness and injustice of the current administration. I don’t have any silver bullets, but I offer the following three things:

1. Volunteer for campaigns in 2018. Not as lawyers looking to do lawyerly stuff, but as citizens. Donate money, knock on doors, put up signs. Lend your name and time to help the campaign with anything they need you to do without second guessing or being insulted that what they need you to do is “beneath you” or not “substantive enough.”
2. Speak out, even when it’s uncomfortable. The administration is separating children from their parents and putting them in cages. The president said that a federal judge who was born in Indiana could not be fair because his parents came from Mexico. The president refused to condemn Nazis who were committing violence and chanting hate in Charlottesville. Do not stay silent because it’s polite or because speaking up might upset your friends or coworkers (or strangers) — speak out.
3. If you know how you want to help, volunteer for cause directly. If you don’t or just want to help wherever you are most useful, go to www.wetheaction.org and sign up. It will connect you to worthy progressive causes.

We may not feel like there is much hope, but it has never been more important to fight.