Law & the Courts

Justice Kennedy’s Judicial Power Grab

(Chip Somodevilla/Getty)
Justice Kennedy has opened the floodgates to a plethora of new “rights.”

In between the gibberish and the “mystical aphorisms of the fortune cookie” (as Justice Scalia put it in his dissent) that constitute most of Justice Kennedy’s Obergefell opinion, he buried a landmine that, if triggered, will dramatically shift power from the political branches of government to the courts.

A case called Washington v. Glucksberg (1997) presented an obstacle to Justice Kennedy in his goal of finding a substantive-due-process right to same-sex marriage. Rather than simply ignore this case, as he ignored the legal principles governing equal-protection claims, he gutted it and removed the main precedent preventing courts from fashioning any number of new rights.

In Glucksberg, the Supreme Court reversed the Ninth Circuit’s holding that the Constitution contains a substantive-due-process right to assisted suicide. Substantive due process is a doctrine under which courts may discover and enforce unenumerated constitutional rights. The Supreme Court stated that in order to find a substantive-due-process right, a court would have to determine that the right, based on a “careful description” of what it included, was “objectively deeply rooted in this Nation’s history and tradition.”

The plaintiffs argued that there was a deeply rooted historical right to “self-sovereignty” or “personal autonomy,” and that the Court had previously acknowledged a substantive-due-process right to “refuse unwanted lifesaving medical treatment.” The Court rejected these arguments, noting that once it looked past ambiguous descriptions, there was no historical support for a right to assisted suicide. Related rights might be deeply rooted, but none of those rights included assisted suicide, which had been illegal in nearly every state for nearly all of American history and therefore could not possibly meet that standard.

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Under the Glucksberg standard, same-sex marriage has no roots whatsoever in American history, and the existence of a general right to marriage does not help. The right to marry might be deeply rooted, but nearly every state for nearly all of American history has limited marriage to individuals of opposite sexes.

Rather than admitting that there was no substantive-due-process right to same-sex marriage, Justice Kennedy buried Glucksberg. He acknowledged that the Glucksberg test “may have been appropriate” when talking about assisted suicide, but claimed that a more lenient approach is appropriate when “discussing other fundamental rights.”

With Glucksberg out of the way, he had no need to find a historical right to same-sex marriage so long as he could find a more general right that could conceivably encompass it. Kennedy made this doctrinal change without any substantive legal analysis or explanation as to why the seemingly sensible limitation on judicial power should be lifted.

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Not satisfied with simply removing Glucksberg’s “careful description” requirement, he also called into question its “rooted in this Nation’s history and tradition” requirement. Kennedy stated that “rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”

Justice Kennedy considered this power grab imperative, lest “the past alone … rule the present.”

Justice Kennedy considered this power grab imperative, lest “the past alone . . . rule the present.” Apparently, no one ever told Justice Kennedy that there is another option: The political branches of government can rule the present within the unchanging guidelines of a written Constitution.

If Glucksberg is limited in the manner Justice Kennedy described, the courts will be empowered to take control of ever larger spheres of American life. Courts have relied on Glucksberg when refusing to invent new substantive-due-process rights. Some of the rights rejected by these courts seemed like good ideas, others seemed like bad ideas, and some were simply bizarre. But under Glucksberg’s strict requirements, courts recognized that the Constitution had left the question of whether to recognize these rights to the People and their elected representatives.

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To cite just a handful of examples: The First Circuit declined, in McCurdy v. Dodd (2003), to recognize a parental right to the companionship of adult children. The Sixth Circuit, in John Does II & III v. Munoz (2007), denied a right of sex offenders to be removed from a sex-offender registry if their conviction had been expunged for good behavior. It also rebuffed, in Blau v. Fort Thomas Public School District (2005), the alleged right of a student to wear jeans in school. The Seventh Circuit rejected, in Doe v. City of Lafayette, Indiana (2004), a sex offender’s claim that he had a right to enter city parks. The Eighth Circuit declined, in Gallagher v. City of Clayton, Missouri (2012), to recognize a right to smoke cigarettes on public property. The Ninth Circuit refused, in Raich v. Gonzales (2007), to recognize a right to medical marijuana. The Eleventh Circuit refrained, in Williams v. Attorney General of Alabama (2004), from creating a right to use sex toys. The D.C. Circuit found, in Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach (2007), that there was no right for a terminally ill patient to use experimental drugs. The Northern District of Ohio refused, in Lowe v. Swanson (2009), to create a right to incest, as did a Tennessee state court in Smith v. State of Tennessee (1999).

After Justice Kennedy eliminated Glucksberg, the only remaining limit on new judge-made rights is a judge’s imagination.

In Obergefell, Justice Kennedy made it clear to lower courts that, after he eliminated Glucksberg, the only remaining limit on new judge-made rights is a judge’s imagination. He noted that “when new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim for liberty must be addressed.” In other words, he believes that since the Founders “did not presume to know the extent of freedom in all of its dimensions,” they gave courts unlimited power to “protect  . . . the right of all persons to enjoy liberty as we learn its meaning.” The “we” in that sentence refers to judges.

It is impossible to know what sort of unenumerated rights newly freed judges may impose. Present-day European constitutions contain rights to adequate housing, a healthy environment, the enjoyment of nature and culture, a fair wage, limited working hours, and “cultural and social self-fulfillment.” Now that Justice Kennedy has opened the floodgates, there is no concrete legal reason to rule out the possibility that judges may find these rights hidden in our Constitution as well.

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Liberals have spent decades trying to pass an Equal Rights Amendment, but now a judge can hand them victory on a silver platter. Allowing D.C. to have voting representatives in Congress is a liberal dream, and now a judge can make it happen with the stroke of a pen. Felons nationwide can have their voting rights restored tomorrow. The possibilities are endless, and questions that may have formerly been decided through the democratic process are now more likely to be decided by unelected judges.

Some may deny that judges will take advantage of the tools Justice Kennedy has granted them. This is a mistake. In Lawrence v. Texas (2003), Justice Kennedy went out of his way to assure readers that even though he found a right to homosexual sodomy, the case “does not involve” same-sex marriage. In fact, in her concurrence, Justice O’Connor explicitly stated that the opinion’s reasoning did not apply to “other laws distinguishing between heterosexuals and homosexuals . . . such as . . . the traditional institution of marriage.”

#related#In Obergefell, Justice Kennedy admitted that this was nothing but a ruse. He noted that while Lawrence decriminalized sodomy, “it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.” In other words, Lawrence was always one phase in a larger program.

This time, Justice Kennedy did not even engage in the fiction of claiming that this case was the high-water mark of substantive due process; he openly invited judges to create new fundamental rights, and there is no reason to think they will be anything other than happy to oblige. If judges are granted unchecked power, at least some of them will eventually exercise it.

In his dissent, Justice Roberts wrote that people could reasonably celebrate the result of the Court’s decision so long as they did not “celebrate the Constitution,” which had “nothing to do with” the decision. He did not go far enough. While people are celebrating the result of the decision, they should also feel a deep sense of dread over what it means for the Constitution.

— Howard Slugh is an attorney practicing in Washington, D.C. He submitted an amicus brief in the Obergefell case.


Howard Slugh is an attorney practicing in Washington, D.C. He is a co-founder of the Jewish Coalition for Religious Liberty.


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