Law & the Courts

Good Riddance, Justice Kennedy

Supreme Court Justice Anthony Kennedy (Joshua Roberts/Reuters)

While it is true that Justice Anthony Kennedy was a disappointment to conservatives, the observation misses the point. Kennedy did not owe conservatives decisions that they liked. What all Americans deserved from him was the conscientious application of the law. That they did not get it is the true indictment of his time on the Supreme Court.

Again and again, Kennedy made rulings that aggrandized the power of the Court and of himself as its swing justice. No justice, right or left, was more willing to substitute his judgment for that of elected officials and voters. No justice was less willing to tie himself down to clear rules or a legal philosophy that would constrain him in future cases, let alone rules or a philosophy that bore a plausible relation to the Constitution. We moved toward a system of government no Founder intended, in which his whim determined policy on a vast range of issues.

Some of Kennedy’s critics said that Kennedy had set himself up as our “philosopher king,” but the term suggests a level of sophistication in thought that he did not evidence. The trademark of a Kennedy opinion was a verbal effusion that gestured toward profundity without overcoming confusion. Most notoriously, he used an abortion case to opine that “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.” Nobody who ratified the Constitution or its relevant amendments thought in such terms. Nor would any of it be a legal defense against a parking ticket.

Kennedy’s lack of real guiding principles had the happy consequence that he sometimes voted for the right legal outcome — and even sometimes concurred in opinions that reached the right outcome for the right reasons. But we hope that his successor will have a much stronger sense of what fidelity to the law requires. And any plausible Trump nominee will be an improvement.

NOW WATCH: ‘The Supreme Court Handed Liberals a Pretty Bad Week’

The Editors — The Editors comprise the senior editorial staff of the National Review magazine and website.

Most Popular

Politics & Policy

Kat Timpf Chased Out of Brooklyn Bar

Fox News personality and National Review contributor Kat Timpf was forced to leave a bar in Brooklyn over the weekend after a woman she had never met became enraged upon learning she worked in conservative media. Timpf, who has twice previously been harassed while socializing in New York City, first described ... Read More
Film & TV

The Dan Crenshaw Moment

Given the spirit of our times, things could have gone so differently. On November 3, when Saturday Night Live comic Pete Davidson mocked Texas Republican Dan Crenshaw’s eye patch, saying he looked like a “hit man in a porno movie” — then adding, “I know he lost his eye in war or whatever” — it was a ... Read More
U.S.

The Present American Revolution

The revolution of 1776 sought to turn a colony of Great Britain into a new independent republic based on constitutionally protected freedom. It succeeded with the creation of the United States. The failed revolution of 1861, by a slave-owning South declaring its independence from the Union, sought to bifurcate ... Read More
Elections

Florida’s Shame, and Ours

Conspiracy theories are bad for civic life. So are conspiracies. I wonder if there is one mentally normal adult walking these fruited plains -- even the most craven, abject, brain-dead partisan Democrat -- who believes that what has been going on in Broward County, Fla., is anything other than a brazen ... Read More
Elections

There’s No ‘Neo-Jim Crow’ in Georgia

In the overtime of the 2018 elections, the Left can’t decide whether it opposes casting doubt on election results or insists on it. In the case of the Georgia gubernatorial election, narrowly lost by African-American activist Stacey Abrams, it’s unquestionably the latter. A cottage industry has grown up ... Read More