Yes, he was. Anthony Kennedy was one of the unholy five justices so damned afraid Al Gore might have actually carried the state of Florida, as he carried the nation by a plurality of almost half a million votes, that they rammed through Curious George’s election the Constitution be damned. “Great cases, like hard cases, make bad law,” said Oliver Wendell Holmes, and Ollie got that one right on the nose. Whenever you hear anyone talking about the “greatness” of Justices Rehnquist, Scalia, Thomas, O’Connor, or Kennedy, remember that decision.1
Tony was, probably, the last of the country club Republicans, guys who make a fuss of sportsmanship and good fellowship and then slip you a mickey somewhere on the back nine. Kennedy voted unfailingly with the Republican Gang of Four to protect the political interests of corporations and white folks in general, giving the constitutional thumbs up to every fake voter “fraud” racket Republicans could come up with to suppress the poor folks’ vote in general and the black folks’ votes in particular.2
When the fate of the Republican Party wasn’t at stake, Kennedy, it seemed to me, voted with the side that wanted it more, shifting almost at random from one side to the next. His big impact, of course, was on gay rights. It is thanks to Anthony, largely, that all my happily married gay friends are happily married, so how can I complain about that? In a perfect world, abolition of all the anti-gay laws, which have been part of the Anglo-American legal tradition since Henry VIII decided he wanted a change of venue,3 would have been handled by the state legislatures, but legislators hate dealing with sexual issues, so they were, for the most part, happy to have the Supreme Court take the heat for doing something they lacked the courage to do. The best is the enemy of the good here, I’m afraid, but the notion that it’s okay to cheat for a good cause always leads to trouble—Roe v. Wade being the obvious case in point.4
I wish I could be an unqualified fan of “judicial restraint,” but I’m not. All the decisions Kennedy made allowing states to “protect” the ballot by putting barriers in the way of low-income voters “should” have gone the other way, in my opinion. Still, there is a great deal to be said for “restraint”, if only judges and justices were capable of applying it in an even-handed manner, which it seems they are not: my first conclusion, after completing a year-long course in constitutional law at the University of Pittsburgh, reading hundreds of Supreme Court decisions and writing a precis of each one, was “these guys aren’t that smart.” Because they aren’t. Result-driven decisions are a dime a dozen at the Court. They usually aren’t as naked as Bush v. Gore, but there’s almost always a lot of skin showing. And it ain’t pretty.
Afterwords
An obvious downside to giving courts, and the Supreme Court in particular, so much power is that justices never leave, with the result that the lives of 300 million people (at least) can be radically affected by the decisions of a handful of old folks who grew up laughing at Milton Berle.
I’ve had a lot to say, most but not all of it negative, about what I’ve rather grandly titled “the banalities and venalities of Nino Scalia”, as well as William Rehnquist.
- Back in 2016, Michael Vines offered a (very) partial rundown of Republican efforts to stifle voting by the wrong kinds of people. ↩︎
- University of Chicago Law Professor Geoffrey R. Stone provides an effective demolition of the Court’s “reasoning”, directing, appropriately enough, most of his fire at super hypocrites Rehnquist, Scalia, and Thomas, leaving O’Connor and Kennedy rather in the position of the Lewis Carroll’s Walrus, reluctant in manner but gluttonous in deed. Perhaps the supreme hypocrisy (okay, one of them) is that the Court issued a 5-4 decision “per curiam”—that is, without identifying the author of the Court’s opinion. Usually, per curiam decisions are unanimous—though the famous “Pentagon Papers” decision, New York Times Co. v. United States, was a 6-3 per curiam. ↩︎
- In the old, old days, the Catholic Church had jurisdiction over sexual offenses. When Henry abolished the Catholic Church, the replacement Anglican Church was deliberately reduced in power, and the civil courts assumed authority over cases previously handled by the canonical courts maintained by the Catholic Church. Homosexual behavior was formally outlawed via the notoriously named Buggery Act of 1533. ↩︎
- Roe v. Wade was a terrible decision, almost as dishonest as Bush v. Gore. Among other things, it has very strongly encouraged the belief among many liberals that if an issue is really important, it should be decided by the courts rather than the people, because that way, “we” always win. If the Court had not “found” a right to abortion in the Constitution, abortion would still be intensely controversial, but not, I believe, as divisive as it has been and continues to be today. Ruth Bader Ginsberg, by the way, agrees with me. William Saletan argues that Republicans don’t really want to overturn Roe v. Wade. They just like to talk about doing so. Well, a lot of people said the same thing about the Democratic Party and universal health insurance. But they were wrong. ↩︎
