Bench Memos

Justice Kennedy on the Politicization of the Court

On March 26 and 27, the Supreme Court will hear oral arguments in Hollingsworth v. Perry and United States v. Windsor, two cases regarding same-sex marriage with potentially far-reaching consequences. All eyes are on potential swing vote Justice Kennedy, who authored the Court’s 2003 decision striking down a Texas anti-sodomy statute. This all makes recent comments by Justice Kennedy especially interesting. From the Associated Press:

U.S. Supreme Court Justice Anthony Kennedy said Wednesday that congressional lawmakers need to maintain the nation’s balance of power by being able to compromise, expressing concerns that the high court is increasingly the venue for deciding politically charged issues such as gay marriage, health care and immigration.

Kennedy, a former Sacramento law school professor, was asked by reporters whether he thought the court was deciding too many issues that can be decided by Congress.

“I think it’s a serious problem. A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say,” Kennedy said. “And I think it’s of tremendous importance for our political system to show the rest of the world—and we have to show ourselves first—that democracy works because we can reach agreement on a principle basis.”

The exact import of Justice Kennedy’s comments isn’t clear — we should know a whole lot more after this month’s oral arguments — but they could be a promising sign for those who support federalism and the text and original meaning of the U.S. Constitution. Perhaps Justice Kennedy realizes that the Court could avoid, as I put it last week, “detonating a dirty bomb in a culture war that already seems to be going pretty well for one side,” by letting Congress define marriage for the purposes of federal law only and freeing each state to define marriage as they choose.


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