Justice Kennedy’s soaring ambitions

Supreme Court Justice Anthony Kennedy keenly relishes acting as an ethical or moral beacon. He boasts that the high court’s policy encyclicals endow the justices with greater power than elected lawmakers, with the possible exception of foreign affairs. Justice Kennedy’s playing Platonic Guardian under the umbrella of the Constitution might be redeemed were he blessed with uncommon wisdom and dazzling insights. But his observations about the human condition are a best jejune and at worst sophomoric. Justice Kennedy illustrates why President George W. Bush should stick to Supreme Court nominees in the mold of Robert Bork, Antonin Scalia and Clarence Thomas.

In a June 3, 2005, interview with the Academy of Achievement, the justice elaborated his interpretation of the Constitution: “You know all of us have an instinctive judgment that we make. … And judges do the same thing … [A]fter you make a judgment, you must then formulate a reason for your judgment into a verbal phrase, into a verbal formula. And then you have to see if that makes sense, if its logical, if it’s fair, if it accords with the law, if it accords with the Constitution, if it accords with your own sense of ethics and morality. And if at any point along this process you think you’re wrong, you have to go back and do it all over again.” In other words, Justice Kennedy’s personal sense of “fairness,” “ethics,” and “morality” enjoy equal standing with the Constitution. Thus, he has enlisted such extraconstitutional and intellectually vacuous concepts as “mysteries of the universe” and “the meaning of human existence” in proclaiming constitutional rights to abortion and homosexual sodomy in Planned Parenthood v. Casey (1992), and Lawrence v. Texas (2003), respectively.

He explained in the interview that the most difficult cases for him implicated “the components of human liberty,” an inevitable result of the subjective moral standard of constitutional interpretation he celebrates. Justice Kennedy amplified: “Because if you insist that the individual has a particular right, that means the legislature cannot infringe on that right. And sometimes your own values and your own morals really would disapprove of the conduct that you’re ratifying, but you do so because there’s an area of morality. But morality really should have an underpinning of rational choice, and each citizen must make that rational choice to determine what is good and what is evil, and those are hard.”

But civilization would degenerate into a state of nature where life is poor, brutish, nasty and short if laws could be transgressed with impunity whenever the motivation was personal conception of what is good or evil. Justice Kennedy shied from that precipice in Lawrence by arbitrarily withholding constitutional condemnation of laws against same-sex “marriage,” prostitution, polygamy, obscenity or marijuana irrespective of whether the violator acted in accord with moral conscience. Arbitrariness, however, earmarks a government of men, not of laws.

Justice Kennedy preposterously insisted the Founding Fathers intended to make the Supreme Court the nation’s vanguard, not the least dangerous branch confined in its interpretations to the original meaning of the Constitution. He asserted a justice must be guided by the knowledge that, “The Framers wanted you to shape the destiny of the country. They did not want to frame it for you.” According to Justice Kennedy, the legislative and executive branches play subordinate roles, like extras in a Cecille B. DeMille extravaganza. He thus boasted: “You know, in any given year, we may make more important decisions than the legislative branch does — precluding foreign affairs perhaps. Important in the sense that it will control the direction of society.”

Justice Kennedy’s conception of constitutional interpretation is the manipulation of “symbols that have an intrinsic ethical content.” He maintains, “If you’re going to achieve, you have to achieve by manipulating symbols and working with systems that have an ethical content.” It is not enough to honor the modest judicial role intended by the Framers.

Justice Kennedy’s claimed power to compel the nation’s embrace of ethical or moral goodness would be less alarming if he radiated the profundity of a Nestor or Merlin. But he does not. His starry-eyed identification of his major concerns for the 21st century is exemplary:

“My major concern is that what I thought was the golden age of peace seems farther from our reach than I would have thought 10 years ago. My major concerns are that there is not an understanding and a commitment to the idea that the American constitutional system and the American idea freedom have certain universal components that we have a duty, No. 1, to understand ourselves, and No. 2, to explain to the rest of the world. Not at the point of a bayonet. That’s sometimes necessary, but not at the point of a bayonet, but because we have a bond with all mankind. I don’t think we are looking far ahead enough in this respect.”

If Justice Kennedy would stick to the original meaning of the Constitution in lieu of crusading for a better ethical or moral universe, he would find his task less troublesome and under rather than above the law.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group. He has published an “Advice & Consent Handbook” on Supreme Court appointments and the judicial filibuster.