Take That, Justice Tony

Anthony M. Kennedy, retired Associate Justice of the Supreme Court of the United States, swears in as his successor his former law clerk Judge Brett M. Kavanaugh to be the Supreme Court's 114th justice Monday, Oct. 8, 2018.

By Peter Wolfgang Published on July 14, 2022

I am so pleased that Justice Anthony Kennedy did not die, but retired. I am so pleased that he is still alive today to read Dobbs v. Jackson’s evisceration of the Casey v. Planned Parenthood decision he wrote.

You remember that decision? The 1992 decision that by a narrow vote of 5 to 4, upheld Roe v. Wade, thanks to the votes of three Republican appointees. In the decision, Kennedy noted that “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” He was right about that, but look at what he did with the idea.

Kennedy’s Mystery

Kennedy admitted that “Some of us as individuals find abortion offensive to our most basic principles of morality.” But never mind principles and morality. “That cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.” In one move, he not only prevents any claim that the unborn child is a human being with rights, he erases that child from sight.

He does that by making any recognition of the child’s humanity a merely personal opinion. It’s of no value to the court. Normally, the court cares about the status of the people involved in a legal case, especially when the question is who has what rights. But Kennedy avoided that question, which might have been fatal to his desire to affirm Roe, by skipping over it as it weren’t a question at all.

Kennedy himself would not want to live in a world with people allowed to act on their personal definitions of reality, because the Supreme Court protects their liberty to do so.

Then a few sentences later he offers the most revealing line: “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.” That’s as perfect a description of everything that’s wrong with the modern misunderstandings of the American way of life as any that has ever been written.

It’s almost meaningless, legally and philosophically. Kennedy himself would not want to live in a world with people allowed to act on their personal definitions of reality, because the Supreme Court protects their liberty to do so. Charles Manson? The neighborhood Vladimir Putin? The people who shoot up schools?

The Fall of the Wall

The rejection of Roe and Casey feels like the fall of the Berlin Wall in 1989. Before it fell, almost everyone assumed it would be there forever. The Soviet communist state (and its satellites like East Germany) was too powerful ever to fall. How could a totalitarian state that controlled its people ever lose power? It seemed common sense to settle into permanent opposition, without trying to defeat it.

And then, miraculously, the Berlin Wall fell. And not long after that, the Soviet totalitarian state as well. And after the wall fell, people felt the sense that “Of course it fell. The wonder is how something that dumb, that evil, stayed up for so long.”

Though pro-lifers fought for almost fifty years in the hope of overturning Roe, there was a sense in the wider society that Roe was a permanent part of American law. Many pro-lifers felt this might be true. As every year passed, and more women had abortions and the act became more deeply entrenched in American life, it seemed less likely that the Supreme Court would just say no.

And then six of the justices did. You read Samuel Alito’s opinion in Dobbs and you think, “Duh. Of course. Sanity has reasserted itself. It was bound to happen eventually. How did the insanity ever last so long?”

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The original Roe decision was really bad. The court should not have sustained it so long. The philosopher Hadley Arkes explains one of the reasons in First Things. Roe, and Casey, made a ruling while avoiding the fundamental question. The problem with them is “one of those irreducibly moral questions at the base of our laws. Roe withdrew the protections of law from a class of small, vulnerable human beings, and the inescapable question is why that withholding of protection was justified.”

As I said, Alito eviscerates Kennedy’s argument in Casey. For example, he noted that Casey “concluded that stare decisis, which calls for prior decisions to be followed in most instances, required adherence to what it called Roe’s ‘central holding’ — that a State may not constitutionally protect fetal life before ‘viability’ — even if that holding was wrong.” He then notes: “Paradoxically, the judgment in Casey did a fair amount of overruling.” Kennedy’s decisions depended on a convenient application of stare decisis.

A few paragraphs later he lowers the boom. “Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”

The Thing Itself

Roe couldn’t last when responsible justices came to the court. It made up a constitutional reason to allow something the Constitution didn’t allow. Kennedy’s attempt to ground that decision in an idea of our liberty to define “the mystery of life” didn’t do any better.

As with the poor reasoning undergirding the fake-right to abortion, so with the thing itself. I think that belief will also fall eventually as the Berlin Wall fell. How insane that people were ever ok with the taking of unborn human life. They still are ok with it, I know, especially in my part of the country.

Roe v. Wade has been overturned in the courts, but not in people’s hearts. We still have a long way to go. We still have to change hearts and minds as well as the law. But I think belief in the goodness of abortion will fall someday there, too, just as it did on the high court.

 

Peter Wolfgang is president of Family Institute of Connecticut Action. He lives in Waterbury, Connecticut, with his wife and their seven children. The views expressed on The Stream are solely his own.

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