Below is my column in The Hill newspaper on the legacy and vision or Associate Justice Anthony Kennedy. The departure of Kennedy will leave the Supreme Court more calcified and rigid in its ideological division. Chief Justice John Roberts now assumes the role of the swing vote with a center of gravity that will likely move further to the right. His voice was unique and often profound. He applied a conservative jurisprudence that emphasized the protection of individual rights and identity. Time will show that Kennedy saw a horizon for our society that we are still struggling to attain.
Here is the column:
The retirement of Justice Anthony Kennedy has been met with apocalyptic predictions of a new Supreme Court with a Trump-enhanced majority. Within hours of Kennedy’s announcement, CNN legal analyst Jeffrey Toobin described a country where bazookas might be legal, women arrested for back-alley abortions, and gays chased from stores. He even gave a hard date of 18 months for abortion being illegal in at least 20 states.
While remarkably specific in his timeline, Toobin’s dread is shared by many who saw Kennedy as a watchful moderating force on the court — the human shield protecting basic rights from an ideological attack from the right.
Indeed, Kennedy’s departure could well mean the greatest shift on the court since the move from the Warren to the Rehnquist courts. However, too much emphasis has been placed on the loss of the court’s perennial swing vote.
Kennedy was more than a fifth vote on a tally sheet. The real loss is not his vote but his voice. Kennedy was unique in his treatment of individual rights — speaking profoundly about the struggle of all individuals to maintain dignity and identity in this nation. His was a strong but gentle voice at the very center of our most divisive controversies, calling for tolerance of free expression and association. In the internecine battles of the court, he squarely planted in the middle as a constant beacon for liberty interests.
Kennedy’s legacy over 30 years on the court produced some of the most defining cases of our generation. It was Kennedy who, in 1992, joined in the plurality decision in Planned Parenthood v. Casey to preserve the constitutional right to choose. It was Kennedy who wrote the historic ruling in Citizens United v. FEC in 2010 to recognize the free-speech rights of corporations. He was the author of Obergefell v. Hodges in 2015 recognizing the constitutional right to same-sex marriage. On limiting the death penalty, guaranteeing due process for detainees, protecting free speech, and so many other critical moments, it was Kennedy who stuck the balance. Always Kennedy.
Kennedy was a bridge justice who showed that you can follow a conservative philosophy (as he did) and still be an advocate for individual rights. Indeed, Kennedy’s voice was most profound and clear when he was discussing values of privacy and dignity in the Constitution.
He saw no conflict in following a conservative approach to constitutional interpretation and defending individual rights, particularly for insular or unpopular groups. Kennedy saw the Constitution as an expression of natural-law values and not just originalist thought. That gave his jurisprudence a greater range and evolution in dealing with changes in our society and mores.
What did not change was Kennedy’s view of the Constitution as a bulwark against government and majoritarian abuse. Kennedy’s jurisprudence was anchored in the 18th-century Enlightenment philosophy of figures like John Locke and later philosophers like John Stuart Mill. Kennedy’s jurisprudence often reflected the “harm principle” of Mill who wrote that “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” He refused to accept that speech or associations or sexual orientation could constitute a harm justifying state punishment or coercion.
That powerful vision was evident back in his 2003 decision in Lawrence striking down the criminalization of homosexuality and, later, his opinion recognizing a constitutional right to same-sex marriage in Obergefell v. Hodges. In that latter case, Kennedy declared: “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.”
Kennedy had a clarity and consistency of thought in his opinions. He did not flinch from striking down a federal ban on virtual child pornography or protecting the right to burn the flag as a protest. For Kennedy it was all free speech — not good or bad, just speech. In his decision striking down the Child Pornography Prevention Act in Ashcroft v. Free Speech Coalition, in 2002, Kennedy wrote: “The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought. … The court’s First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct.”
Kennedy transcended partisan expectations to reach across the court’s ideological lines to find commonality with colleagues over concepts like dignity. He stood alone in his unique articulation of a liberty interest in self-expression as opposed to more classic liberal or conservative constructs.
That vision expressed an inner transcendent meaning to the Constitution. It also reflected a deeply sympathetic view of common aspects of life. Marriage was not a licensed relationship of a state but the manifestation of “the highest ideals of love, fidelity, devotion, sacrifice, and family.” The Kennedy record amounts to a stratographic record of this country’s evolution from prejudice to tolerance, from exclusion to inclusion.
Kennedy’s often nuanced take on constitutional law is not what President Trump described when he promised to move the court to the right. Everyone understood he was referring to Kennedy and the long-awaited opportunity to replace a swing with a locked vote.
With Kennedy’s departure, the court will be left with two calcified ideological extremes — two camps that are less likely to reach shifting compromises on difficult social issues. The new court may now become more like our politics in the absence of Kennedy: more predictable and uncompromising. Opinions may become mere place-holders for a future emerging majority — as opposed to a true dialogue between jurists.
The struggle of Kennedy to strike a balance on the court was deeply reflective of the struggle of this country over the last 30 years. It was Kennedy who often stepped forward to protect our most vulnerable rights and individuals. It was his voice that reminded us of our better angels.
Perhaps the collective panic over his departure reflects our continued insecurity over our continued capacity for self-harm as a free people. However, the key lesson that Justice Kennedy leaves with us is that we are not the sum of our insecurities but, rather, of our ideals. We have the ability to transcend our divisions and find a common value in our identity as a free people. That reassuring voice will continue to reverberate in the cases that Kennedy left over the course of his brilliant career.