WHY did the Founders bother toiling in the summer heat of
Philadelphia in 1787 writing a Constitution when they could have relied
on the consciences of Supreme Court justices like Anthony Kennedy
Kennedy is the court's most important swing vote and its worst
justice. Whatever else you think of them, a Justice Antonin Scalia or
Ruth Bader Ginsburg has a consistent judicial philosophy - while
Kennedy expects the nation to bend to his moral whimsy. With apologies
to Louis XIV, Kennedy might as well declare la constitution, c'est moi!
In a 2005 interview, Kennedy said of the court, "You know, in any
given year, we may make more important decisions than the legislative
branch does - precluding foreign affairs, perhaps." (He was wise to
include the "perhaps," in light of the recent Guantanamo Bay decision.)
He went on to note how judges need "an understanding that you have an
opportunity to shape the destiny of the country."
So much for the country's destiny being shaped by a free people
acting through their representative institutions, within certain
constraints it enshrines in the Constitution. That wouldn't allow
nearly enough room for what Jeffrey Rosen, in a devastating profile of
the justice in The New Republic, calls Kennedy's "self-dramatizing
On any politically charged case, we are supposed to wait with bated
breath while the famously agonizing Kennedy decides which side he is
going to bless with his coveted fifth vote. In so doing, Kennedy
believes he is, in Rosen's description, creating "a national consensus
about American values that will usher in what he calls 'the golden age
of peace.' "
Observers less besotted with Kennedy than Kennedy might put it differently: making it up as he goes along.
Two years ago, Kennedy joined the majority in the Hamdan v.
Rumsfeld case that urged the president to obtain congressional approval
for the system of military tribunals at Gitmo. President Bush did - but
Kennedy wrote the 5-4 majority decision in this year's Boumediene v. Bush striking down the system anyway.
Kennedy quoted the World War II-era Eisentrager decision (upholding
the military trial of German detainees) to show that there were greater
practical difficulties back then with judicial interference in military
detentions. Yet he left unremarked that the Eisentrager decision
unmistakably says - a mere paragraph after his citation -
that the Constitution does not apply extraterritorially: "No decision
of this court supports such a view. None of the learned commentators on
our Constitution has ever hinted at it."
Indeed, Kennedy blew through some 200 years of precedent with nary a backward glance. Just another day at the Kennedy Court.
It should be no surprise how Kennedy construes the Eighth
Amendment's prohibition of "cruel and unusual punishments": It is
warrant for the court to exercise its "independent judgment" of "the
evolving standards of decency that mark the progress of a maturing
society," as Kennedy put it in this term's 5-4 Kennedy v. Louisiana
decision forbidding capital punishment in cases of child rape.
The signature of a Kennedy opinion is vaporous moralizing, whatever
side he comes down on. In the 1992 Casey decision upholding Roe v.
Wade, he waxed poetic about "the right to define one's own concept of
existence, of meaning, of the universe, and of the mystery of life."
In a 2007 decision upholding the partial-birth abortion ban, he
waxed again, this time about "respect for human life find[ing] an
ultimate expression in the bond of love the mother has for her child."
Evidently, Kennedy goes about his job unburdened by the fact that
his views on existence or on the mother-child bond have nothing
whatsoever to do with the Constitution. But so it goes, as long as the
Supreme Court is divided between four liberals, four conservatives and
one self-important man who can't differentiate between his inner
compass and the nation's fundamental law.
Kennedy fashions himself an instructor to the nation. And he is - in the arbitrary ways of judicial lawlessness.