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The legacy of Justice Anthony Kennedy

Friday, 06 July 2018


Justice Antonin Scalia once said this about a majority opinion written by Justice Anthony Kennedy: “The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

Such words seem harsh and perhaps a clash between two men of authority with differing worldviews. But similar thoughts have been echoed by other scholars and commentators, on the right and left of the political spectrum. As one leading progressive political commentator, Ian Millhiser, stated: “[Justice Kennedy’s] writing ranged from needlessly flowery to completely incoherent. And, while his views sometimes placed him to the left of men like Scalia and Bork, his ‘liberal’ opinions were frequently his most incomprehensible.”

Perhaps in making that comment Millhiser was thinking about this infamous passage from Casey v. Planned Parenthood, the 1992 Supreme Court case authored by Justice Kennedy that upheld the constitutional killing of unborn children in Roe v. Wade: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

While such ruminations might fit well within a Jean-Paul Sartre novel, they are incomprehensible in the realm of judicial opinions. To return to Justice Scalia: such thinking is more fitting for the “mystical aphorisms of the fortune cookie” than for Supreme Court case law.

In addition to his attempts to incoherently wax philosophical while writing some of the most monumental legal opinions of the last 30 years, Justice Kennedy will also be known as “The Decider”—as Time Magazine called him in 2012. Justice Kennedy has been known as the “swing” vote on the Court’s most critical opinions on social policy. For many, he wielded an incredible amount of power for one man sitting on what Alexander Hamilton called the “least dangerous” of the federal governmental branches.

For example, Justice Kennedy was the key vote to upholding Roe v. Wade, ensuring that our country continues to kill our unborn children under the guise of a protected constitutional right. Yet, he was also the key vote to strike down the egregious practice of partial birth abortions. Justice Kennedy was also critical for expanding gay rights through the years by striking down a Texas sodomy law (Lawrence v. Texas), striking down the federal Defense of Marriage Act that recognized marriage as a union between one man and one woman (United States v. Windsor), and creating the right to same-sex marriage under the 14th Amendment (Obergefell v. Hodges).

In summary, Justice Kennedy’s legacy is that of a Philosopher-King. He seemed to have his own interpretation of the common good of society that he superimposed into the U.S. Constitution—a task most people would say is not befitting of a judicial officer, but a legislator.

With Justice Kennedy’s departure from the Supreme Court, our country faces a watershed moment. Many anticipate that the next Associate Justice of the Supreme Court will be in a position to restore a proper reading of the Constitution on issues such as dignity of unborn human life and religious liberty. Whether and how this will take place is yet to be seen. As with all things in life, we have the great responsibility of prayer to undertake, to plead with God that He would offer our country an Associate Justice who honors and respects life, liberty, and the law.
