Justice Anthony Kennedy

by Jeffrey Rosen | June 11, 2007

In the current issue, I write about the utopianism of Justice Anthony Kennedy, who as the swing vote on the Supreme Court, has imposed his moral abstractions on issues ranging from women's rights to the death penalty. Here are some totemic documents that may help to illuminate his worldview.

Justice Kennedy's interview with the Academy of Achievement, June 3, 2005. In the most comprehensive interview he has granted, Kennedy shares his opinions on everything from Billy Budd to The Bonfire of the Vanities. "I think you are happiest," he confesses, "if you find a profession or a business or an occupation where you manipulate symbols that have an intrinsic ethical content."

Justice Kennedy's address to the American Bar Association in Honolulu, 2006. A revealing speech in which Justice Kennedy offers a three part definition of what the rule of law means to him and urges his audience to "make the case for freedom" to "a doubting world." Justice Kennedy is said to have choked up while delivering the soaring peroration about law as a "liberating force."

Bush v. Gore, December 12, 2000. In the per curium opinion, which Justice Kennedy wrote himself under time pressure, the loftiness of his vision of the Court's role in American democracy is on vivid display. "None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution's design to leave the selection of the President to the people, through their legislatures, and to the political sphere," he writes, protesting too much.

Gonzales v. Carhart, April 18, 2007. The most recent of Justice Kennedy's odes to the essential nature of women. Worth reading closely not only for Kennedy's generalizations about the moral agony he believes women must suffer in exercising the right to choose but also for Justice Ruth Bader Ginsburg's blistering and effective dissent.

Lawrence v. Texas, June 26, 2003. Justice Kennedy's opinion striking down sodomy laws, inspiring in many ways, is marred by his invocation of the "sweet mystery of life" passage, which the Massachusetts Supreme Court cited in striking down bans on gay marriage. Justice O'Connor's more modest separate opinion reaches the same result in a way less calculated to drive social conservatives crazy.

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