Justice Kennedy’s Legacy Is the Dignity He Bestowed

(Bloomberg Opinion) -- Justice Anthony M. Kennedy, who announced his retirement Wednesday after more than 30 years on the bench, will go down in history as a study in internal contrasts.

Appointed by President Ronald Reagan, he wrote several important states-rights decisions over the years, and identified as a conservative — but was better known, and more celebrated, for his generation-defining liberal judgments on gay rights.

Personally buttoned down and conventional, Kennedy crafted a jurisprudence dedicated to the idea that every person must have the autonomy and dignity to make crucial life decisions — even decisions with which he disagreed.

Not given to personal display, the justice wrote opinion after opinion strengthening the U.S. Supreme Court — which he controlled in recent years with his swing vote — until it stood at the apex of power in the constitutional structure.

Kennedy’s first extremely important opinion, which in retrospect set the pattern for other blockbusters, came in the 1992 case of Planned Parenthood v. Casey, which he wrote jointly with Justices Sandra Day O’Connor and David Souter. The opinion declined to overrule Roe v. Wade, preserving its core while subtly changing the legal standard for abortion.

In the passage that Kennedy wrote and that would follow him for the rest of his career, he moved away from Roe’s theory of privacy, and justified the need for the freedom to choose in original terms. The passage is here in full, because it encapsulates one of the most important constitutional theories of the last half-century, and will be Kennedy’s legacy:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. 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. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

This logic, deriving freedom from the need to “define one’s own concept of existence,” propelled Kennedy in a direction that few or none could have anticipated when he was first appointed to the bench.

Kennedy became the swing voter and the lead author in a series of gay-rights cases that, over 20 years, brought the Constitution from tolerating outright bans on gay sex to requiring states and the federal government to recognize same-sex marriage. The key rationale behind those cases was the idea of “equal dignity,” a concept that Kennedy developed to bridge the doctrinal gap between the right to privacy on the one hand, and the equal protection of the laws on the other.

To conservatives, Kennedy’s abortion decision and his subsequent gay-rights jurisprudence were a betrayal of judicial restraint and originalism, the twin pillars of official conservative legal theory. Justice Antonin Scalia dismissed Kennedy’s famous paragraph as his “sweet mystery of life” passage. For Scalia, Kennedy’s theory was third-rate philosophy and worse poetry.

To liberals, Kennedy was an extremely unlikely savior, the justice who restored liberal faith in an activist Supreme Court after the disaster that was Bush v. Gore. No other justice has an opinion excerpt read regularly at progressive wedding ceremonies, the way Kennedy’s Obergefell decision is now often heard.

It’s important to remember that Kennedy continued to think of himself as a conservative, albeit one deeply committed to liberty and dignity. His opinions recognized that his favorite concept of “dignity” applied even to states, a result that conservatives loved and liberals rolled their eyes at.

Yet in the last part of his career, after O’Connor retired and he became the swing justice, Kennedy reached several other hugely important decisions that give heart to liberals. The most notable was his decision extending constitutional rights to the war on terrorism detainees in Guantánamo Bay, Cuba — a decision that squarely repudiated the detention policies of the George W. Bush administration.

For Kennedy, the key element in the Guantánamo case was that the court, not Congress or the president, must have the last word on the Constitution. The administration had chosen Guantánamo precisely to avoid judicial review. “The nation’s basic charter cannot be contracted away like this,” Kennedy wrote. This embrace of judicial supremacy captured Kennedy’s sense that the court must always determine rights, a view that could be described as the epitome of judicial activism.

The same activism was on display in the notorious Citizens United decision, which conferred First Amendment rights on corporations and opened the door to near-unfettered campaign spending. Kennedy’s view of the freedom of speech was libertarian and nearly absolute.

Finally, Kennedy developed a jurisprudence focused on the idea that government could not act with animus toward disfavored groups. This view he applied to protect religious minorities as well as gay people.

The idea may now seem obvious. But before Kennedy, the courts had not been so inclined to search out discriminatory intention and hold government accountable for it.

It is a fitting irony that in the last major case he sat on, Trump v. Hawaii, Kennedy failed to follow his own jurisprudence of animus. Allowing Trump to get away with his travel ban, despite its manifest anti-Muslim bias, contradicted Kennedy’s decision just a few weeks before in Masterpiece Cakeshop, the case of the cake baker who would not make a wedding cake for a gay couple.

In that case, Kennedy held for the baker because an administrative law judge in Colorado had compared his religious liberty claim to bigotry. Trump’s anti-Muslim tweets and statements were much worse, yet Kennedy joined an opinion that refused to consider them a basis for blocking the ban.

As a result, Kennedy’s last major act on the court was felt as a betrayal by some liberals, myself included. But of course the truth is that Kennedy was never a liberal in his own heart at all. His complex jurisprudence of high principles, including liberty, equality and dignity, just happened to make him the justice who saved abortion, established gay marriage and extended the Constitution to Guantánamo. We shall not see his like again.

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