In the American republic’s slow transformation into a judicial-executive dyarchy, with a vestigial legislature that lets the major controversies get settled by imperial presidents and jurists, Anthony Kennedy occupied a particularly important role. He was appointed to the Supreme Court at a time when the Republican Party was officially interested in curbing judicial activism and restoring power to the elected branches of government. As the court’s swing vote, though, he instead consolidated the judiciary’s imperial role — taking the expansive powers claimed by judicial liberals in the Warren era and turning them to his own purposes, his own vision of the common good.
He did this without a particularly coherent constitutional theory, which is why he never attracted the disciples who flocked to Antonin Scalia or the fans who celebrate Ruth Bader Ginsburg as the Notorious RBG. Kennedy preferred to rule the country like an oracle, agonizing behind the scenes but showing neither humility nor rigor in his ultimate decisions — overruling state and federal law more frequently than any justice to his right or left, pontificating in sweeping and self-righteous and faux-poetic prose, seeking to establish the court as the decisive and unifying authority for a sprawling and divided country.
If his constitutional theory was somewhat lacking, though, his guiding ideals were clear. Without being a completely consistent libertarian, he was a general champion of freedom — “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” as his Planned Parenthood v. Casey decision famously put it — across both social and economic spheres. To borrow an overused but still useful word, Kennedy was the modern court’s most “neoliberal” justice, embracing corporate freedom and sexual freedom as a kind of unity, attacking restraints on campaign spending and mandates to buy health insurance in the same spirit as restrictions on pornography or flag-burning or abortion.
I was not a great admirer, as you can no doubt tell. Like most conservatives, I favor a more limited role for our robed archons, I admired Scalia’s originalism precisely because it establishes plausible (if, of course, debatable) limits on judicial activism, and I regard Kennedy’s Casey ruling as a vapid Emersonian effusion, whose paean to individualism was really a license to kill inconvenient innocents. Even when he was right on the merits of an issue, he was still too aggrandizing, too eager to impose his own judgment, too quick to short-circuit legislative debates.
But in the last few years, the years of Obama’s Caesarism and Trump’s caudillo act and Congress’ utter uselessness, I’ve developed a limited sympathy for Kennedy’s imperial approach. If he contributed to our republic’s deformation he did not act alone, and what he delivered was, in some sense, what both the political class and the public increasingly desire from their government: not republican deliberation but quasi-monarchical action.
Politics abhors a vacuum, and judicial activism increasingly fills the empty space created by legislative sclerosis and political cowardice, by the unwillingness of elected representatives to act on controversial issues. This abdication, persistent and ongoing, naturally impels partisans to look to the courts and the executive to act instead. Kennedy answered this desire too readily, but he didn’t invent it, and there were times when he clearly tried to act as the “good emperor” that our decadent system and polarized country may require — by balancing his own liberal rulings on abortion and same-sex marriage, for instance, with subsequent decisions that allowed some space for pro-life activism and protected some religious liberties against the anti-clericalism of the left.
But even if you accept that our country increasingly craves a kind of stabilizing central power, Kennedy’s freedom-first synthesis did not succeed in supplying it. Instead, our age of opioids and suicide and sterility, and the heartland populists and Bronxian socialists that anomie has conjured up, strongly indicates that his neoliberal model needs correction — that the freedom of capital and genitals is not enough for human flourishing, that community and solidarity need to have their day, even if it comes at the expense of certain liberties and transcendentalist idylls.
Here it may be that John Roberts, Kennedy’s likely successor as our First Archon, is better suited than his predecessor to the imperial task. We know that Roberts is more temperamentally cautious than Kennedy, more interested in limited rulings than in sweeping ones. We also know that he’s both more friendly to religious conservatism (witness his Obergefell vote) and more willing to let social-democratic policymaking stand (witness his vote to save Obamacare).
That combination could produce a Roberts court that doesn’t lay down its extraordinary powers — the old republic may be too far gone for that — but manages to use them in a somewhat different style, to further a somewhat more communitarian vision.
After Anthony Kennedy, I don’t expect a court that ceases to be imperial. But I dare to hope for one that rules us a little more wisely than he did.