Good riddance to Justice Anthony Kennedy
The Supreme Court’s longest serving justice announced his retirement shortly after casting the deciding vote on a string of decisions that were seen as wins for the conservative side of the bench. Kennedy’s stepping down didn’t come as a surprise. There have long been rumors in Washington that he was considering hanging up his robe. With a Republican-controlled Congress and White House, the timing couldn’t be better, so as to ensure his seat would be filled with someone from the right side of the ideological spectrum.
In GOP circles, Kennedy’s notice was met with whoops and hollers of joy. Not only will President Trump nominate another justice to the high court, but he or she will be in the vein of Justice Neil Gorsuch, the strict constitutionalist with whom Trump filled Antonin Scalia’s seat.
The press is treating the prospect like a royal rumble match between Senate Republicans and Democrats. The hype is overblown. With 51 Republican senators, and no more 60-vote requirement on approving Supreme Court nominations thanks to Mitch McConnell’s canny changing of the rules to seat Gorsuch over Democrat intransigence last year, Trump’s appointment will have an easy path to the Court.
The change can’t come soon enough. Despite Kennedy’s rightward leanings, and his appointment by President Ronald Reagan, as a justice, he ruled based on a corrupted idea of freedom, one so flimsy and weak, it could be mistaken at times for liberalism.
The Left knows this. That’s why there is a fair bit of agonizing over Kennedy’s departure. “This is the fight of our lives,” declares Massachusetts’ own chief progressive senator Elizabeth Warren. “Kennedy’s retirement means that women’s health, equal marriage, and civil rights are all at risk,” she warns. Kennedy would, sometimes, pick “a few causes that liberals cherish,” writes Emily Bazelon of The New York Times Magazine. For liberals, he was an “occasional, if fickle, guardian angel.” Reverend Al Sharpton, in his usual breezily overblown manner, proclaimed that all “civil and human rights are at stake.”
CNN legal analyst Jeffrey Toobin is oddly specific, warning that at least 20 states will pass laws “banning abortion outright” once Kennedy’s successor is confirmed. One can hope!
For once, the leftist freakout could be justified. Kennedy was the Court’s big swing vote because his conception of freedom aligned nicely with social liberalism’s narrow view of the human person. As Rusty Reno writes, “When it comes to engraving the sexual revolution into our basic law, Justice Kennedy has provided the key votes, and often the rationales.” It was this mistaken view that led him to vote with the liberal bloc of the Court and legalize same-sex marriage across the country. It also provided a bulwark against any challenge to Roe v. Wade should one have risen through the judicial system.
Kennedy’s vision was infamously summed up in Planned Parenthood v. Casey, a 1992 case that reinforced the right to abortion. Writing in the joint majority opinion, Kennedy fully embraced the relativistic view that freedom is anything one decides it should be, regardless of external truths. “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,” he waxed.
That passage, which is lauded by many libertarian legal scholars, sums up the ultra negative view of freedom. By its lights, a person is only truly free if they are treated like a blank slate, without history or connection to anything larger than their own subjective assumptions. Atavistic allegiance to concepts like family and religion may not infringe upon this sacred autonomy.
The “sweet mystery of life” passage, as the late Antonin Scalia derided it, is New Age feel-good claptrap that’s more at home in a weed smoke-filled dorm than a serious arena of law.
Kennedy would expand upon his reductive view of human liberty in his opinion in Obergefell v. Hodges, the case that invalided state bans on gay marriage. “The Constitution,” he wrote, “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.” Scalia, in his ever effervescent wit, also batted away this airy defining of supreme law by comparing it to the “mystical aphorisms of the fortune cookie.”
There was only one problem: Scalia was writing from the traditional understanding of liberty. Kennedy was writing in the new. And it’s Kennedy’s paper-thin ontological view that rules the day.
The classical view of liberty saw freedom not as an excuse for unlimited autonomy. It balanced societal obligations with personal independence. Individuals, freely pursuing their ends, should strive toward a greater good. The Constitution was established with this framework of human nature in mind.
Kennedy’s philosophy strips liberty to the bone, desiccating its moral fiber until nothing but subjective solipsism remains.
Leftist liberals have plenty of faults. Their conception of the human person as an intractable grab bag of racial and sexual identities mixed up within society’s constricting norms turns life into a narrative about oppression and liberation. But at least there’s a narrative to it–or as Walter Sobchack opined, at least it’s an ethos. For Kennedy acolytes, there is no narrative, no larger picture of humanity. It’s autonomy, mystery, and nothingness all the way down.
It explains why Kennedy is the favorite justice of people who regard filial duty as slavery, who view pederasty as just another form of love, and who refer to prostitutes as “sex workers.” He is a paragon of nihilism. His time on the Court won’t be missed.