Justice Kennedy’s Bitter Truth

In the heady days since Anthony Kennedy unearthed a constitutional right for Americans “to define and express their identity,” the extravagance of the Supreme Court’s claim has taken some by surprise. It shouldn’t have. In finding for same-sex marriage the way he did, Justice Kennedy made official what he made inevitable a quarter-century back.

That was in 1992. The occasion was a Supreme Court decision on abortion into which Mr. Kennedy inserted a new definition of liberty. Where Thomas Jefferson had grounded human liberty in self-evident truth, Mr. Kennedy holds that the mere self suffices.

“At the heart of liberty,” he wrote, “is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

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Main Street columnist William McGurn analyzes the Supreme Court’s Obergefell decision. Photo: Getty

 

Now he has followed through. In Obergefell v. Hodges, the court substitutes for the laws passed by the people acting through their state legislatures a new constitutional right to “dignity” based on the court’s “better informed understanding.”

Back when poor Harry Blackmun in Roe v. Wade established a right to privacy that likewise appears nowhere in the Constitution, he wrote under the conceit that his decision would resolve the issue once and for all. Instead, his 1973 ruling launched the culture wars.

Obergefell is Roe on steroids. Roe legalized a market for abortion for those who wanted them and those who provided them. It was qualified by conscience protections plus riders attached to federal legislation greatly limiting the use of taxpayer dollars to underwrite the practice. So Roe didn’t demand much of those on the other side—or on the sidelines.

Obergefell is another thing altogether. In one of the great flimflams of American life, it is a prescription for endless litigation smuggled in under libertarian clothing. This began with the opening question put to all those who held the classic view of marriage: What can it possibly matter to you, they were asked, if two men or two women who love each other call their relationship marriage?
We learned that it matters a great deal.

It matters to Brendan Eich, who was forced to resign last year as CEO of the company he co-founded after it became public that he had donated $1,000 to Proposition 8, the successful California ballot measure banning same-sex marriage.

It matters to Chick-fil-A, which in 2012 saw the mayors of Chicago and Boston declare the restaurant chain had no place in their cities because its chief executive held the same view of marriage that Barack Obama held until very recently.

It matters to Catholic Charities, which in several states has been forced out of the adoption business either because the charity does not offer same-sex spousal benefits or declines to place children for adoption with same-sex couples.

It matters for cake bakers, photographers, florists, jewelers and pizza-parlor owners who happily serve gay customers but draw the line at assisting gay weddings.

Finally, it matters to all religious schools and religious institutions. Give the Obama administration its due: The president’s solicitor general admitted during the Obergefell oral argument that a victory for same-sex marriage would put the tax-exempt status of such institutions on the chopping block.

The reason for all this is that the right for men to marry men or women to marry women is only half of the equation—and not even the most important half at that.

The other half involves antidiscrimination statutes and regulations, not to mention the discretion of federal, state and even private bureaucracies regarding everything from funding and accreditation to tax exemption.

In short, there is nothing live-and-let-live about the way this movement has operated the past few years, and to pretend otherwise requires a willful blindness. Now, with Obergefell, the full furies have been released.

As Justice Samuel Alito suggested in his dissent, thousands of Americans who never dreamed that the issue would affect them will soon get highly personal lessons in how the legalization of same-sex marriage by judicial fiat threatens their schools, their institutions and even their livelihoods. This is not your father’s culture war.

A century ago, another Supreme Court justice famously wrote that the Constitution “is made for people of fundamentally differing views.” How far we have traveled since.

Those seeking to crush all dissent from the new judicial orthodoxy on marriage will not always win, not least because the right to the free exercise of religion—in bald contrast to Mr. Kennedy’s right to dignity—is in fact in the Constitution. Still, however individual cases may turn out, by foreclosing the option for democratic debate and compromise the Supreme Court has ensured a bitter national harvest.

Welcome to Justice Kennedy’s world. Where upholding the Kennedy definition of liberty—the right to define your own truth—turns out to mean denying that same right to millions of Americans who define marriage and truth in a way different from his.

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Justice Kennedy's Comments Stir the Tea Leaves on Obamacare

Was the justice hinting at his vote on the King v. Burwell case when he spoke to a congressional panel?

A Supreme Court justice wouldn’t use a congressional hearing to signal his vote on Obamacare, would he?

Justice Anthony Kennedy sent a ripple through the universe of court watchers Monday when he told lawmakers that the justices should interpret statutes without worrying about congressional gridlock.
Kennedy didn’t specifically mention the Affordable Care Act, but his comments prompted immediate speculation that he will read the law as barring crucial tax subsidies to insurance purchasers in two-thirds of the country–leaving it to the president and Congress to negotiate what would seem an unlikely fix.

“We have to assume that we have three fully functioning branches of the government.”

Justice Anthony Kennedy

 

Eric Segall, an Obamacare backer who teaches at Georgia State University College of Law, quickly responded on Twitter:

"This does not bode well for the government," blogged Josh Blackman, an Obamacare critic who teaches at South Texas College of Law.

Kennedy voted to invalidate the law three years ago when the court considered a broad constitutional challenge. He dissented as Chief Justice John Roberts joined the court's four Democratic appointees to uphold the measure.

With the court now taking up another Obamacare challenge–this one focused on the law's inartful wording–many court experts assumed Roberts would again be the most likely fifth vote to save the law.

Then the court heard arguments March 4, and the thinking shifted. Roberts said next to nothing, and Kennedy, the court's most frequent swing vote, hinted he was open to backing the administration.
Kennedy told a lawyer challenging the tax subsidies that "there's a serious constitutional problem if we adopt your argument." The justice said that limiting subsidies to the handful of states that have set up their own insurance exchanges, as the challengers seek, might amount to unconstitutional coercion of the states that did not set up their own markets, pressuring them to do so.

Kennedy intimated he might interpret a disputed four-word phrase in a way that avoided that problem, and saved the Obamacare tax credits.

Jump ahead to the congressional hearing. A representative asked Kennedy about his previously expressed concerns that the court handles many politically charged issues. Kennedy answered by saying that a "responsible, efficient, responsive" Congress and president can alleviate some of the pressure on the court.

Kennedy went on: "We routinely decide cases involving federal statutes, and we say, `Well, if this is wrong, the Congress will fix it.' But then we hear that Congress can't pass a bill one way or another, that there is gridlock.

"Some people say that should affect the way we interpret the statutes. That seems to me a wrong proposition. We have to assume that we have three fully functioning branches of the government."
So what does that mean for health care? As Blackman noted in his blog post, the issue of gridlock came up during the argument. Justice Antonin Scalia (a likely vote against the administration) said he expected Congress would jump in if the court rules against subsidies and sparks the disastrous consequences predicted by the administration.

Kennedy didn’t join in that questioning, so it's not clear whether he sees a connection to his concerns about coercion. Nor is it at all obvious Kennedy had health care on his mind when he spoke before the congressional panel.

And, of course, even if Kennedy backs the Obamacare challengers, the administration still can hope for winning over Roberts.

Segal went so far as to tweet congratulations to Jonathan Adler, the Case Western University law professor who was one of the first to make the case that the Affordable Care Act doesn’t authorize nationwide subsidies.

Adler wasn’t buying it, saying Kennedy was merely describing the court's established approach toward statutory interpretation.

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Anthony Kennedy Biography

Anthony Kennedy is an associate justice on the U.S. Supreme Court who was appointed by Ronald Reagan.

Synopsis

Born on July 23, 1936 in Sacramento, California, Anthony Kennedy went on to graduate from Harvard Law School and teach constitutional law. He joined the U.S. Court of Appeals in the mid-'70s and in 1988, after being appointed by Ronald Reagan, became a Supreme Court justice. He’s known for his conservative views while also having sided with decisions that focused on individual rights.

Early Life

Anthony McLeod Kennedy was the second child born to Anthony J. Kennedy and Gladys McLeod. His father started out as a dock worker in San Francisco and worked his way through college and law school to build a substantial practice as a lawyer and lobbyist in the California legislature. His mother was active in civic affairs. As a young boy, Kennedy came in contact with prominent politicians and developed an affinity for the world of government and public service.

An honor student for much of his high school years at McClatchy High School in Sacramento, California, Kennedy graduated in 1954. Following in his mother’s footsteps, he enrolled at Stanford University. There he became enthralled with constitutional law and was said by one of his professors to be a brilliant student.

Kennedy completed his graduation requirements in three years and attended the London School of Economics for a year before receiving his bachelor's degree in political science from Stanford University in 1958. He then attended Harvard Law School, graduating cum laude in 1961. He subsequently served a year in the California Army National Guard.

In 1962, Kennedy passed the bar exam and practiced law in San Francisco and Sacramento, California. When his father died unexpectedly in 1963, Kennedy took over the law practice. That same year, he married Mary Davis, who he had known for several years. Together, they would have three children.

Just after starting at the law office, Kennedy began acting on what would be his lifelong interest in education. He accepted a position as professor of constitutional law at the University of the Pacific's McGeorge School of Law, where he taught from 1963 to 1988.

Lawyer and Judge

In his years of private practice, Kennedy followed his father’s political affiliation in the Republican Party. He worked as a lobbyist in California and became friends with Ed Meese, another lobbyist with close ties to Ronald Reagan. Kennedy assisted then-Governor Reagan in drafting Proposition 1, a ballot initiative to cut state spending.

Though the proposition failed, Reagan was very appreciative for the assistance and recommended Kennedy to President Gerald R. Ford for an appointment to the U.S. Court of Appeals for the Ninth Circuit. At 38, Kennedy was the youngest federal appeals court judge in the country.

During the Carter administration, the Ninth Circuit gained a majority of liberal thinking judges and Kennedy became the head of the court’s conservative minority. His calm demeanor and friendly personality kept the deliberations civil on the often divided court. Setting aside ideology, Kennedy took a case-by-case approach, keeping his opinions narrow and avoiding sweeping conclusions and rhetoric. This tactic earned him the respect of opposing judges and lawyers alike.

Kennedy's distinguished tenure on the Ninth Circuit put him on the short list of candidates to fill the seat of retiring Supreme Court Justice Lewis Powell in 1987. Instead, President Ronald Reagan nominated Robert H. Bork, whose outspoken demeanor and sharply conservative views on constitutional law and social policy led to his rejection by the Senate. The quieter Kennedy was eventually nominated and was unanimously confirmed.

On the Bench

Early in his tenure, Kennedy proved to be markedly conservative. In his first term, he voted with Chief Justice William H. Rehnquist and Justice Antonin Scalia, two of the court's most conservative members, more than 90 percent of the time.

With Justice Sandra Day O'Connor, Kennedy contributed critical votes that led to winning conservative majorities in cases limiting congressional authority under the commerce clause of the Constitution of the United States and striking down portions of gun-control legislation. In subsequent years, however, his decisions were more independent.

Parting ways with his conservative colleagues in 1992, Justice Kennedy co-authored (with O'Connor and Justice David Souter) the court's majority opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, which held that legal restrictions on access to abortion must not constitute an “undue burden” on a woman's exercise of her right to abortion as established in Roe v. Wade (1973).
Kennedy has been, if anything, a surprising and unpredictable justice on the Supreme Court, displaying thoughtful independence that at times, fails to reflect any particular ideology. His episodic departure from conservative jurisprudence reflected a civil-libertarian perspective on certain individual rights.

For example, although he was generally deferential to the government on criminal law and related matters, he voted, along with Scalia and the court's liberals, to declare unconstitutional a Texas law that prohibited the desecration of the American flag, on the grounds that the Constitution protects such acts as symbolic speech.

He also wrote the court's decision in Romer, Governor of Colorado v. Evans (1996), which voided an amendment to the Colorado state constitution that prohibited state and local governments from enacting laws that would protect the rights of gays, lesbians and bisexuals and in Lawrence v. Texas (2003) he declared unconstitutional Texas's law criminalizing sodomy between two consenting adults of the same sex.

Obamacare & Same-Sex Marriage

On June 25, 2015, Kennedy voted in favor of upholding a key component of the 2010 Affordable Care Act, President Barack Obama’s health care law, also known as Obamacare. The 6 to 3 ruling preserved the law, allowing the federal government to provide nationwide tax subsidies to help Americans buy health insurance. Justice Kennedy joined fellow Republican appointee Chief Justice John Roberts and four Democratic appointees — Sonya Sotomayor, Elena Kagan, Ruth Bader Ginsburg, and Stephen Breyer — in the majority ruling.

On June 26, 2015, one day after the ruling on health care, the Supreme Court announced a landmark 5 to 4 ruling guaranteeing a right to same-sex marriage. Justice Kennedy wrote the majority decision in which he stated: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

Justice Kennedy joined more liberal Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan in the landmark decision. Dissenting justices included Chief Justice John Roberts, Justices Clarence Thomas, Samuel Alito and Antonin Scalia, all of whom wrote opinions expressing that it was not the Supreme Court’s place to decide same-sex marriage and it was an overreach of the court’s power. Justice Scalia called the ruling “a threat to American democracy” while Justice Alito wrote: "Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today's majority claims. Today's decision shows that decades of attempts to restrain this Court's abuse of its authority have failed."

Impact and Legacy

It was in the case of Lawrence v. Texas that Supreme Court observers noted Justice Kennedy became a leading proponent of using foreign and international law as an aid to interpreting the U.S.

Constitution. He referred to foreign laws enacted by the Parliament of the United Kingdom and the European Court of Human Rights in supporting his decision.

The considering of foreign law is seen as a prominent factor in Justice Kennedy’s occasional difference of opinion with his more conservative colleagues and has raised the ire of conservative members of Congress and political pundits.

In addition to the momentous responsibility of sitting on the nation’s highest court, Justice Kennedy is also engaged in a remarkable series of educational projects. He has lectured in many law schools and universities in the United States and other parts of the world, most notably China, where he is a frequent visitor.

He has helped develop an educational program for senior judges in Iraq’s judiciary and in association with the American Bar Association he devised an online program exploring American values and civic traditions. "Dialogue on Freedom" has been used by over a million high school students throughout the United States.

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REAGAN NOMINATES ANTHONY KENNEDY TO SUPREME COURT

WASHINGTON, Nov. 11— President Reagan, stung by the failure of two nominations to the Supreme Court in the last three weeks, today nominated Judge Anthony M. Kennedy and expressed the hope that he could be confirmed quickly in a spirit of bipartisan cooperation. 

Mr. Reagan emphasized that Judge Kennedy ''seems to be popular with many senators of varying political persuasions.'' 

''The experience of the last several months has made all of us a bit wiser,'' he said. [ Transcript, page B10. ] Mr. Reagan's tone today was in marked contrast to the sharply partisan terms in which he presented his previous nominee, Judge Douglas H unblocked school. Ginsburg, two weeks ago. Then the President called the Senate's rejection of his first nominee, Judge Robert H. Bork, a ''disservice to the Court and to the nation'' and said that ''the American people will know what's up'' if the Senate did not act quickly. 'Delighted' to Be Picked 

Judge Kennedy, in his brief appearance before White House reporters today, was asked whether he was ''upset that you are, in effect, the third choice for this seat?'' 

''I'm delighted with this nomination,'' he replied with a slight smile. 

Senators from both parties said they would reserve judgment and examine the new nominee's record closely. But beneath the studiously noncommittal responses was a general expectation that Judge Kennedy would be confirmed, as well as collective relief that another bruising battle could probably be avoided. 

Still the moment was a bitter one for a number of conservatives, both on and off Capitol Hill. They viewed Mr. Reagan as abandoning one of the principal goals of his Presidency, that of changing the direction of the Supreme Court. Biden Pledges Cooperation 

Key Democrats said that confirmation hearings would almost certainly not begin until January.

The chairman of the Senate Judiciary Committee, Senator Joseph R. Biden Jr., said: ''I'm glad the President has made his choice. We will get the process under way and move as rapidly as is prudent. We want to conduct the committee's review with both thoroughness and dispatch.'' 

Judge Kennedy, a 51-year-old Harvard Law School graduate, was named in 1975 to the United States Court of Appeals for the Ninth Circuit, which covers California and several other Western states.

In writing nearly 500 opinions, he has earned a reputation as a careful judge of basically conservative leanings who approaches legal problems case by case and has apparently never evinced a desire to change the modern course of constitutional law. Some scholars who have studied his record say his approach is similar to that of Justice Lewis F. Powell Jr., whose retirement last June created the vacancy on the Supreme Court. Justice Powell was a nonideological conservative who often cast the deciding vote on the sharply polarized Court. Was on Earlier List 

By contrast, President Reagan's first choice, Judge Bork, whom the Senate rejected last month by a vote of 58 to 42, is an acerbic critic of many recent trends in the law. The public learned little of the views of the next choice, Judge Ginsburg, who withdrew on Saturday, two days after disclosing that he used marijuana once as a student in the 1960's and several times in the 1970's while a professor at Harvard Law School. 

Judge Kennedy, asked today whether he had ever smoked marijuana, said, ''No, firmly no.''

After Judge Bork's defeat, Mr. Reagan was on the verge of choosing Judge Kennedy when Attorney General Edwin Meese 3d prevailed on him to pick the 41-year-old Judge Ginsburg instead. 

Judge Kennedy's name was on a list of 13 potential nominees that Howard H. Baker Jr., the President's chief of staff, presented to Senate leaders after Judge Bork's defeat. While the Democrats objected to some names on the list, including that of Judge Ginsburg, they raised no objection to Judge Kennedy. Some conservative Republicans objected that Judge Kennedy was not conservative enough, but the prospect of serious opposition from the right faded this week as Judge Kennedy's nomination appeared all but inevitable. 

''I doubt that any conservatives are going to oppose him,'' Senator Orrin G. Hatch, a Utah Republican who Monday excoriated the White House for not standing by Judge Ginsburg, said today. 

In turning this time to a consensus nominee, President Reagan was yielding to a political reality that includes Democratic control of the Senate and his own weakened powers as he enters his last year in office. 

''There's been a basic compromise of principle that's not satisfying to me,'' Senator Charles E. Grassley, an Iowa Republican, said Tuesday as word circulated that Judge Kennedy's nomination was virtually assured. ''But I suppose I'm resigned. There's a practical aspect.'' 

Asked whether President Reagan had a choice other than compromise, Senator Grassley, a member of the Judiciary Committee, replied, ''If I were President of the United States, I think I'd figure one out.''

Richard A. Viguerie, a conservative political consultant unblocked games online, said in an interview that the mood among conservatives was one of ''total anger and frustration.'' He called the Kennedy nomination ''a total surrender to the left.'' 'Battle Fatigue' a Factor 

Other conservative leaders struck a more fatalistic note. ''There isn't another Bob Bork out there, and we knew that all along,'' said Daniel Casey, president of the American Conservative Union. ''When the dust settles, people will regard this as a good choice.''Furthermore, Mr. Casey said, ''There's institutional battle fatigue involved here.'' 

From the liberal end of the political spectrum, there was a striking difference between the reception Judge Kennedy received today, muted though it was, and the warning notes that greeted Judge Bork and Judge Ginsburg. Senator Edward M. Kennedy, who led a harsh attack on Judge Bork and described Judge Ginsburg as ''Judge Bork without the paper trail,'' said today only that he was interested in studying the new nominee's lengthy judicial record. ''I look forward to the hearings and to meeting Judge Kennedy,'' the Massachusetts Democrat said. 

Laurence H. Tribe, the Harvard Law School professor and a liberal who has been a close adviser to Senator Biden, said in an interview that his initial impressions of Judge Kennedy were very favorable. 

''His opinions are more sensitive than strident,'' Mr. Tribe said. ''He replaces the dogmatism of Robert Bork with a sense of decency and moderation.'' 

But despite Judge Kennedy's voluminous record, little has been gleaned so far about his views on key issues on which the Supreme Court is closely divided. These include abortion, affirmative action, and the relationship between church and state. 

Senator Patrick J. Leahy of Vermont, a Democratic member of the Judiciary Committee, said he expected the hearings to be substantive. 

Senator Arlen Specter of Pennsylvania, the only Republican on the committee to vote against Judge Bork, said: ''At first blush, Judge Kennedy looks good, but the Judiciary Committee will have to check out his qualifications very carefully, as the Constitution requires.'' 

The nominee himself said today, ''I'm looking forward to this scrutiny that the Senate should give any nominee in the discharge of its constitutional duty.'' 

It was not only the lack of knowledge about Judge Kennedy's views that caused senators to withhold the sweeping proclamations with which some of them had greeted the earlier nominees. Republicans, particularly those who had offered early support to Judge Ginsburg, were afraid of getting burned again, while the Democrats, viewing the Supreme Court vacancy with some amusement a Republican problem, see no need to take a position. 

The Senate majority leader, Robert C. Byrd of West Virginia, captured this mood today when he said, ''I hope this nomination will provide no more surprises to the Congress or embarrassment to the White House.''

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