Opinion: Justice Kennedy’s Dire Warning on Democracy

Retired Supreme Court Justice Anthony Kennedy doesn’t speak often, and when he does, he chooses his words carefully. So when the Reagan-appointed justice took the virtual stage Thursday to declare that American democracy is “at risk,” it should have sent shockwaves through the nation’s political and legal institutions.

“Many in the rest of the world look to the United States to see what democracy is, to see what democracy ought to be,” Kennedy said. “If they see a hostile, fractious discourse, if they see a discourse that uses identity politics rather than to talk about issues, democracy is at risk. Freedom is at risk.”

Kennedy did not name names. He didn’t have to. The threats he referenced — rising political hostility, relentless attacks on judges, and the corrosion of public trust in democratic norms — trace back most clearly and dangerously to one man: Donald J. Trump.

The president continues to turn judges into targets in his ongoing campaign to portray every ruling against him as the product of corruption or conspiracy. U.S. District Court Judge James Boasberg, for example, became the focus of Trump’s rage after ruling against an effort to deport Venezuelan asylum seekers. Trump called him a “radical left lunatic” and demanded his impeachment — not because of any scandal or misconduct, but because Boasberg dared to apply the law.

This behavior has become routine. Trump frequently refers to judges as “monsters,” “traitors,” and “USA-haters” — language that has real-world consequences. According to the U.S. Marshals Service, more than 400 threats against judges have been tracked this year alone. This is not hyperbole. This is escalation.

Judge Esther Salas knows this all too well. In 2020, a disgruntled litigant showed up at her home and opened fire, killing her 20-year-old son and gravely wounding her husband. Salas, who also spoke at the forum with Kennedy, connected the dots between toxic rhetoric and violence.

“Judges are rogue. Sound familiar? Judges are corrupt. Sound familiar? Judges are monsters,” she said. “We are seeing the spreading of disinformation coming from the top down.”

When threats move from metaphor to murder, the line between democratic dysfunction and authoritarianism has already begun to blur.

Yet Trump’s attacks continue unabated, often amplified by his allies and echoed in partisan media outlets. The judicial branch — once viewed as a stabilizing force in American governance — has increasingly become a punching bag for politicians unwilling to accept legal limitations on their power. This is not a policy disagreement. It is a challenge to the very legitimacy of the judiciary as a co-equal branch of government.

Kennedy’s comments, delivered just days before the Supreme Court is expected to release its final and potentially explosive decisions of the term, were not aimed at scoring political points. They were a statesman’s plea to preserve the democratic values that he spent a lifetime defending — even when doing so required unpopular votes or lonely dissents.

Indeed, Kennedy’s own legacy includes some of the Court’s most consequential rulings on individual liberty and human dignity. He cast decisive votes to uphold LGBTQ rights, affirm affirmative action (albeit narrowly), and limit executive overreach. Whatever disagreements one may have with his jurisprudence, Kennedy has consistently shown reverence for the rule of law and the dignity of the judiciary.

That reverence is now under siege.

When Kennedy warns that “freedom is at risk,” he is not speaking in abstractions. He is observing, as a legal scholar and jurist, that the United States is exhibiting symptoms of democratic decay. And central to that decay is the collapse of respect for truth, process, and institutions.

Part of that erosion is driven by the rise of political discourse rooted not in reason or policy but in resentment and spectacle. Kennedy referenced the rise of “identity politics” not as a critique of inclusion but as an indictment of discourse that substitutes grievance for substance. In this context, he appeared to be warning against weaponizing identity to inflame tribalism rather than engaging it to expand justice.

Yet, if Kennedy erred at all, it may have been in understating the scope of the problem.

The threat to democracy is not limited to divisive rhetoric. It is legislative. It is legal. It is physical. From efforts to restrict voting rights in dozens of states, to ongoing attempts to nullify election results, to the criminalization of dissent, the nation is experiencing a coordinated rollback of democratic norms.

And much of that rollback is justified through the delegitimization of the courts.

Trump’s strategy is painfully simple: when a judge rules against him, he attacks their character, their ethnicity, their motives. When the courts block his efforts, he calls them “rigged.” When he is indicted, he accuses prosecutors and judges of being part of a vast anti-Trump conspiracy. The goal is to ensure that no ruling against him is ever seen as legitimate — and by extension, no institution that checks his power is ever seen as legitimate.

That is the essence of authoritarianism. Not a coup with tanks in the streets, but a slow, steady erosion of faith in democratic institutions. Once the public no longer believes in the courts, the ground is cleared for a strongman to present himself as the only source of justice — a familiar pattern in history, and one with catastrophic consequences.

It is perhaps for that reason that Kennedy chose to end his remarks with a moral imperative: “We must always say no to tyranny and yes to truth.”

These are not the words of a political partisan. They are the words of a man who spent decades at the apex of American legal power, who now sees that power being threatened not from without, but from within.

To be clear: Kennedy is not alone in his concern. Judges, legal scholars, and even former Republican officials have issued similar warnings in recent years. What sets Kennedy’s warning apart is its clarity, its urgency — and its source. This is not some coastal law professor decrying Trumpism. This is a Reagan-appointed Supreme Court justice, trusted by conservatives for decades, saying the quiet part out loud.

The question now is whether anyone will listen.

As the nation barrels toward another high-stakes election, with Trump once again a dominant political force, Kennedy’s warning should serve as both a mirror and a map. It reflects how far we’ve fallen — but also shows a way back: through civility, judicial independence, truth, and the steadfast refusal to surrender to fear.

The judiciary, fragile as it may be, remains a bulwark against tyranny. But it cannot stand alone. It requires public support, political restraint, and leaders — from both parties — willing to defend it when it’s under attack.

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