Justice Kennedy: The Rule of Law Requires You To Enforce the Laws I Made Up

by David French

Speaking at Harvard Law School, Justice Anthony Kennedy — author of the lawless Obergefell majority opinion — essentially declared “Rule of law for thee, but not for me.” At an appearance at Harvard Law School, a student asked him about the Kim Davis case, and he responded like this:

Referring to laws governing both marriage and abortion, the young man asked Kennedy, “Would you say that there are any state or federal officials with authority to act according to her own judgment of the truth of new insights or of the soundness of the court’s constitutional interpretation, or would it be illegal for any federal official or state official to enforce or to act according to the old understanding of life and the Constitution that she still judges to be the truth of the matter?”

The justice responded by pointing out that only three judges resigned during Germany’s Third Reich — the government of Adolf Hitler — and said, “Great respect, it seems to me, has to be given to people who resign rather than do something they view as morally wrong, in order to make a point. However, the rule of law is that, as a public official, in performing your legal duties, you are bound to enforce the law.”

“This requires considerable introspection,” he continued, “and it’s a fair question that officials can and should ask themselves. But certainly, in an offhand comment, it would be difficult for me to say that people are free to ignore a decision by the Supreme Court.”

A Hitler analogy? Really? Well, Justice Kennedy started it (and — oddly — in his own analogy he’s playing the role of the Nazis), so let’s roll with the reasoning. If he admires the three judges who resigned rather than comply with Nazi directives, how much more should he respect judges who actively resisted? After all, if the “rule of law” is broken from the top, then it behooves the lesser authorities not just to resign and clear the way for tyranny but rather resist, and try to stop the tyrant in his tracks.

Setting aside his Nazi analogy, let’s not forget what Kennedy did in Obergefell. In an opinion that contained such pearls of “legal” reasoning as this: “Marriage responds to the universal fear that a lonely person might call out only to find no one there” Justice Kennedy and his four liberal comrades stepped far outside the bounds of their constitutional role and created new law — “law” that trumped a myriad of democratically-enacted state statutes and constitutional amendments. Now, having behaved lawlessly, Justice Kennedy invokes the “rule of law” to command obedience to his dictates? I don’t think so. The Supreme Court jettisoned the rule of law, leaving only the rule of lawyers — backed by the power of the state. 

The full exchange is below, with the student’s question beginning at the 51:00 mark:

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