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.

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