Commentary Magazine

Justice Kennedy’s Mystical Jurisprudence

Wikipedia Commons.

Anthony Kennedy announced his intention to retire from the Supreme Court on Wednesday. The Ronald Reagan-appointed associate justice will long be remembered for undoing the popular will, and dramatically altering the moral landscape of the United States, based on a jurisprudence of balderdash. That his balderdash frequently came wrapped in the elevated rhetoric of “dignity” and “respect” and “autonomy” didn’t change the underlying substance–which is to say, balderdash.

The Kennedy brand of balderdash reached its apogee–nadir, really–in the plurality opinion in Planned Parenthood v. Casey (1992). There, Kennedy wrote that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” The right at question was a mother’s liberty to terminate her pregnancy–a right with no basis in statute, common law, the Western moral tradition, or the U.S. Constitution.

It’s worth trying to retrace Kennedy’s logical steps in that densely packed jumble of balderdash. It begins with a bold but questionable assertion about what lies at the heart of liberty. And what lies at the heart of liberty, Kennedy argued, was something utterly mystical having to do with figuring out the meaning of life for yourself. And the state, he went on, can’t impose an answer to these mystical questions. Each citizen must figure out for herself what the meaning of the mystery of life is. And if unlocking the mystery of life involves the taking of life, well, the state can’t intervene against that, either. Therefore, there is a constitutional right to abortion.

Balderdash, as I say.

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