The Accidental Justice

Justice Anthony Kennedy’s tenure on the Supreme Court was filled with irony. Had it not been for the smear campaign that defeated Judge Robert Bork’s nomination and the withdrawal of Judge Douglas Ginsburg’s nomination because of past drug use, Kennedy never would have risen to the judicial power he used with such gusto. Sadly less uncommon, though no less ironic, Kennedy was a self-identified Catholic who used his power to enforce judicial doctrines undermining the right to life, the natural family, and the place of religious institutions in our public life. Exercising power from the pinnacle of an institution dedicated to upholding justice by vindicating the reasonable expectations of the people standing before him in specific disputes, Kennedy extended an ideology of “living constitutionalism,” used by judges to fundamentally restructure society according to abstract ideals hostile to our constitutional tradition and way of life.

Justice Kennedy spent much of his time and energy on the Court furthering an extreme individualism that undermines the rights of the unborn and religious liberty, properly understood. Leveraging his “swing vote” status, Kennedy seized the opportunity to write majority opinions that further muddied an already incoherent jurisprudence. That jurisprudence pits the rights of unborn children against their mothers, the right of communities to express their religious faith against an intrusive government, and the right of religious organizations to act on their faith against any hostile individual who might choose to challenge their right to act in the public square. He has been instrumental in bringing our nation to the brink of a constitutional civil war. One can only hope that his replacement will return us to constitutional sanity, appreciation for the primacy of text over precedent and tradition over abstraction, and support for the rule of law over the musings of would-be philosopher kings.

Within a few years of coming to the Court, Kennedy was joined by two other “moderate” Republican appointees—Sandra Day O’Conner, an obscure state appeals court judge appointed by Reagan to be the first female Supreme Court Justice, and David Souter, recommended to then-President George H.W. Bush as “Bork without a paper trail.” The three joined in a set of judicial opinions anticipated eagerly by Catholics and conservatives as possibly ending the era of anti-religious judicial activism. The decisions handed down by this troika were stunningly disappointing at the time and presaged Kennedy’s role over the next quarter century. He would be central to enforcing an extreme individualism that placed a few narrow limits on Progressive justices’ demands for greater national control over every aspect of our lives. At the same time, he extended judge-made structures of judicial activism against the demands of the Constitution’s text and of judges like Justices Scalia, Thomas, and Alito to abide by that text.

The two central cases of the early Kennedy-O’Connor-Souter era were Planned Parenthood v. Casey and Lee v. Weisman. The Casey decision, co-written by the three, created a new “standard” for determining whether laws restricting access to abortion might be allowed to stand, namely, whether they impose an “undue burden” or “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” The three minimized the importance of a series of decisions showing that the Court’s decision in Roe v. Wade both lacked any constitutional basis and forced courts to act as legislatures, constantly revising and reformulating “standards” by which to review abortion restrictions. Kennedy, O’Connor, and Souter justified upholding Roe on the grounds that failing to do so would harm the Court’s political standing.

Moreover, they argued, there was an essential principle at issue in abortion—not life, but each individual’s right to define an unborn child as a life, or not. The first part of the relevant “mystery” passage is much quoted: “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.” Silly as this faux-mysticism is, the sentence that follows is worse: “Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” The notion that the state “compels” self-definition by protecting the unborn is as dangerous as it is juvenile. It makes each individual’s “self-definition” the highest good, the fundamental basis of human dignity, and sets this dignity against anything that might vaguely be deemed state compulsion. This bad philosophy has proved to have serious consequences for our society.

The depths of the problem were shown in the very same year that Casey was decided. Kennedy wrote the majority opinion in Weisman, holding that it is unconstitutional for a public school to have a rabbi give a non-denominational graduation invocation. Why? What is the harm being prevented in this case? As Justice Scalia pointed out, the only measurable harm which someone might have suffered was of being asked not to stand up and scream at the Rabbi for daring to invoke God’s name. The case is in keeping with Kennedy’s view that each of us must be “left alone” in a radical sense to define all that is important for ourselves. The principle Kennedy sought to defend, rooted in a series of Supreme Court decisions dating to the New Deal era, was that religious expression cannot be allowed to impinge upon the “secular” sphere of public life. However, the “danger” that someone might feel “less valued” as a result of being asked to sit quietly while hearing words he or she didn’t like was not the central point.

The central point was a principle found nowhere in the Constitution and almost unknown in the vast bulk of our constitutional tradition, namely that “separation of church and state” means forcing religion into an ever-shrinking private sphere so that it will not in any way invade the realm of private self-definition. The result has been decades of fruitless attempts to determine how many snowmen it takes to make a nativity scene in a public space acceptable to our judicial censors, whether nuns can be forced to pay for abortifacients for their workers, and whether religious organizations may maintain their religious identity when providing charity, education, or other good works in the public square.

The paradigm motivating Kennedy’s jurisprudence is of an individual who must be protected by the courts from all outside pressures. The result has been increasing hostility toward the fundamental institutions on which our constitutional order relies. The ultimate issue is marriage. In several decisions regarding homosexual conduct (e.g., Lawrence v. Texas) Kennedy wrote majority opinions claiming to stand only for individual liberty but, in doing so, castigated as unreasoned animus any attempt to maintain the moral status of sex as properly an activity aimed at producing children. The ultimate case, and Kennedy’s ultimate legacy, is Obergefell v. Hodges. Here Kennedy wrote the opinion requiring all states to issue marriage licenses to same-sex couples. The decision is the culmination of Kennedy’s decades-long crusade to champion individual expression. In this case, of course, individual “expression” takes the form of changing our understanding of marriage, severing completely its natural tie to childrearing.

Some have praised Kennedy for the consistency of his drive for “tolerance” regarding issues of individual expression. For example, Kennedy’s majority opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission holds that a government, motivated by anti-religious bias, may not punish a Christian baker for refusing to celebrate a same-sex union. But this decision, though it saved us from the truly frightening principle that the government may force individuals to express opinions that violate their conscience, is hardly encouraging for religious communities. For many decades, Kennedy has stood for the proposition that courts should protect individuals from interference from the outside—whether by the government or by the associations (religious or otherwise) they choose to join—in their “mystical” notions of personal identity. The price of this fanciful theory of human liberty and the ability of individuals to define reality for themselves, is the breakdown of social order, the deaths of millions of innocent children, and the further marginalization of God and religion from public life.

This accidental jurist has caused very real damage to our nation’s institutions and its very soul. We now must work for a replacement who will recognize the limits of legitimate judicial power. We also must hope that the current Chief Justice, John Roberts, does not seize the opportunity to become the next Anthony Kennedy, increasing his own power by leveraging his willingness to side with whatever group of justices will allow him to write their majority opinion. Kennedy’s is a tragic legacy, at best—though sadly one that will be praised by mainstream reporters, academics, and activists so long as they find it useful to do so.

Bruce Frohnen

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Bruce Frohnen is Professor of Law at the Ohio Northern University College of Law. He is also a senior fellow at the Russell Kirk Center and author of many books including The New Communitarians and the Crisis of Modern Liberalism, and the editor of Rethinking Rights (with Ken Grasso), and The American Republic: Primary Source. His most recent book (with the late George Carey) is Constitutional Morality and the Rise of Quasi-Law (Harvard, 2016).

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