Justice Anthony Kennedy: The Supreme Court’s ‘Swing Vote’ Retires

COMMENTARY: In his last dozen years on the court, there was no more powerful public official in America. He alone decided, in case after case, what U.S. law would be on the most contested of public questions.

Associate Justice Anthony Kennedy
Associate Justice Anthony Kennedy (photo: SAUL LOEB/AFP/Getty Images)

On two signature issues of the sexual revolution — abortion and same-sex “marriage” — the United States of America has an extreme position by global standards. And it is unique in holding that those positions are guaranteed by the Constitution, as opposed to legislative statute.

That is the principal legacy of Justice Anthony Kennedy, who announced his retirement June 27 after 30 years on the Supreme Court.

Justice Kennedy was an unlikely figure to dominate the Supreme Court as the swing vote, but as two four-vote blocks emerged on the court, conservative and liberal, his vote tipped the balance in numerous 5-4 decisions. In his last dozen years on the court, there was no more powerful public official in America. He alone decided, in case after case, what U.S. law would be on the most contested of public questions.

He was Ronald Reagan’s third choice to fill a 1987 court vacancy. The first choice, Robert Bork, was a brilliant legal scholar and conservative judge, whose qualifications were beyond doubt. But his conservatism was seen as a threat to the unlimited abortion license of Roe v. Wade, and abortion’s greatest champion, Sen. Ted Kennedy, D-Mass., led an attack upon the judge so vicious and unprecedented that the verb “to Bork” became shorthand for a politics of personal defamation and scurrilous vilification.

Bork was defeated, inaugurating the new era of incivility in politics so often decried today. Reagan — after his second choice withdrew — then nominated Anthony Kennedy, a safe choice from California. An afterthought amid political exhaustion, Kennedy was thought by nobody in 1988 to be the critical man who would preserve abortion rights and establish the right to marriage between persons of the same sex.

Thus the actions of one Catholic Kennedy, Ted, led to another Catholic Kennedy, Anthony (no relation), ascending to the court. In 1992, the second Kennedy would preserve what was to become so dear to the first — the constitutional right to abortion.

In 1992, in Planned Parenthood v. Casey, the federal government asked the court to overturn Roe v. Wade. There were five justices ready to do so. It was discovered in the papers of the late Justice Henry Blackmun — author of Roe itself in 1973 — that Kennedy was the fifth vote to overturn, but he then changed his mind, preserving American’s extreme abortion license. From that time onward, Kennedy was the key vote that codified in law the sexual revolution.

It was in Casey that Kennedy signed the plurality opinion that famously left behind jurisprudence and embraced metaphysics, articulating a radical relativism when it came to sexual matters. That relativistic turn would underpin Kennedy’s emergence as the great judicial champion of sexual libertinism.

“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,” Kennedy and his colleagues wrote in Casey.

It would be difficult to write a better summary statement of relativism than that; freedom means the capacity to determine one’s own concept of the universe itself.

In 2005, on the eve of his election as pope, Cardinal Joseph Ratzinger noted the danger of relativism in public life.

“We are building a dictatorship of relativism that does not recognize anything as definitive and whose ultimate goal consists solely of one’s own ego and desires,” Ratzinger preached.

“Dictatorship” conjures up images of jackboots and the midnight knock at the door. The dictatorship of relativism arrives rather more congenially than that. And it was the congenial Anthony Kennedy who filled the role better than most. His opinions were eloquent, his tone civil, his instincts seeking to moderate the judgments he joined. But he was the dictator of relativism about which Ratzinger raised the alarm.

With Kennedy, the relativism came first, in Casey. The dictatorship came later, in the 2013 Windsor decision, which ruled the 1996 Defense of Marriage Act (DOMA) unconstitutional, despite being passed by huge majorities in Congress and signed by Bill Clinton. DOMA defined marriage for the federal government as being between one man and one woman, and further held that no state was forced to recognize any same-sex “marriage” permitted by another state.

Justice Kennedy wrote the majority opinion in Windsor, and he had himself something of a challenge. The law was clear, and the Constitution was silent about defining marriage. So how to rule that what DOMA did was unconstitutional? Kennedy, joined by the court’s four liberal justices, ruled that the law was unconstitutional because the only reason for it was an animus toward homosexuals. Casting aside the ancient civilizational consensus that marriage proceeds from the differentiation and complementarity of the sexes, Kennedy and his colleagues asserted that no good reason existed for the federal government to establish the traditional definition of marriage in law other than rank prejudice.

“No legitimate purpose overcomes the purpose and effect to disparage and injure those [in same-sex marriages],” wrote Kennedy. Expanding the argument, he wrote that the “avowed purpose” of DOMA was to “impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages.”

In Windsor, Kennedy’s argument that those who disagreed with same-sex marriage could only be motivated by prejudice met a withering dissent from Justice Antonin Scalia:

In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” “injure,” “degrade,” “demean” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence — indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race. 

Scalia understood that the relativism of Casey led to the dictatorship of Windsor, where the court ruled that all those who disagreed with it were motivated by prejudice that had no standing at law. And it was just and proper that those “enemies of the human race” be given no standing in public life.

In Casey, Kennedy ruled that liberty means relativism. The problem arises immediately — how to reconcile different concepts of the universe in our common life together? If there is no standard of truth to resolve disagreements, or even an agreed foundation of law to adjudicate them, then all that is left is power. The stronger party — by consensus, by fashion, by force — prevails.

And if the stronger party does not wish to make room for the weaker party, then what is to prevent it from ruling that the latter have no place in the discussion? Relativism as a governing philosophy can remain benignly tolerant only for a time; eventually the coercion must come.

For Anthony Kennedy, the reconciliation of different concepts of the universe eventually took 21 years — a long time in the life of a man, but not long in the life of a culture or a people. First came the relativism — in 1992, Casey’s right to define the universe. Then came the dictatorship — in 2013, Windsor’s ruling that anyone who disagreed with Kennedy’s definition of marriage and the mystery of life is not a legitimate contributor to common life.

Two years later, in 2015, Kennedy wrote the majority opinion in Obergefell, which extended the logic of Windsor and established that same-sex “marriage” was a constitutional right in all 50 states.

Liberals widely lamented Kennedy’s pending retirement, presuming that Donald Trump will nominate a reliable conservative to replace him. But Kennedy’s liberalism was really only of the sexual kind; on business and labor, the autonomy of the states and criminal justice, he usually joined the conservatives. Indeed, in the court’s last decision with him participating, Kennedy joined the majority, ruling against the capacity of a union to collect dues, a case in which the U.S. bishops backed labor.

Kennedy’s status as a hero to the political left was an indication that sexual libertinism and identity politics had become the great causes of liberal politics, relegating traditional positions on labor, trade and social assistance to second place. Indeed, Kennedy voted in 2012 to overturn the Affordable Care Act “in its entirety”; it was Chief Justice John Roberts who saved “Obamacare” by siding with the four liberal justices.

That an opponent of a universal health care act would become admired on the political left would have surprised the late Sen. Ted Kennedy. But it was he who put unlimited abortion at the center of American liberalism. Justice Kennedy, in protecting it, thus became liberalism’s hero and relativism’s dictator.

Father Raymond J. de Souza 

is the editor in chief of Convivium magazine.