As Justice Anthony Kennedy leaves the Supreme Court, his legacy helps us understand why his replacement matters so much.
Born in California, Kennedy earned his degree in law from Harvard. Along the way he studied at the London School of Economics. He practiced law in San Francisco and Sacramento. Prior to President Ford appointing him to the Ninth Circuit, Kennedy also served as a Professor of Constitutional Law. President Reagan subsequently nominated him to the Supreme Court. The Senate confirmed his appointment in 1988. Reagan would have regretted his nomination, had he lived to see the 30- year legacy of the appointment.
Kennedy Acting beyond the Scope of the Court’s Article III Authority
Article III empowers the Supreme Court to decide disputes arising under the Constitution and the laws of the United States. Since Marbury v Madison (1803) 5 US 137, it has been the province of the judiciary to say what the law means. Nothing in Marbury or its progeny, however, suggests a judge in the judicial branch should substitute his or her will for that of the more politically accountable branches. Call it pride, Robe Disease, or our sinful nature, but Kennedy succumbed to the tempting. Under the guise of interpreting the 14th Amendment Due Process Clause, he substituted his own political preferences for the plain meaning of the Constitution’s provisions.
Kennedy’s Legacy of Extra-Constitutional Judicial Activism
First, in Planned Parenthood v Casey, Kennedy helped to uphold the “essential holding” of Roe v Wade, judicially-creating a constitutional right to personal autonomy. Later in Lawrence v. Texas, he authored the decision evolving this judge-made right of personal autonomy to cover homosexual conduct. Most recently, in Obergefell v. Hodges, he extended the judicially-manufactured right of personal autonomy to include personal identity, and then applied it to destroy the definition of marriage as the union between one man and one woman.
Will the Justice who Replaces Kennedy Continue his Legacy or Serve the Constitution?
At his SCOTUS nomination, Judge Brett Kavanaugh declared he plans to interpret the Constitution based upon what it says. He also said though that he plans to do so as “informed by precedent.” During the confirmation process someone must ask him what he meant by that statement. Does Kavanaugh mean to continue the extra-constitutional legacy of Kennedy (for whom he once clerked)? Or will he rely upon the plain meaning of the Constitution’s provisions to properly decide the disputes before him?