We write not to praise Anthony Kennedy’s jurisprudence, but to bury it.
Across 31 years, Justice Kennedy issued many rulings, good and bad. But his most lasting legacy was the travesty he released 26 years ago today, Planned Parenthood v. Casey. With airy, mystical reasoning, unrooted in the Constitution, the common law, or the natural law, he talked himself into saving a precedent that was indefensible legally, scientifically, and morally.
In saving Roe v. Wade in 1992, Kennedy did violence to the rule of law, and undermined the court’s legitimacy and added extra poison to our politics. Casey helped transform national politics into a winner-take-all partisan death match that, over a decade, saw both parties destroy the rules of the Senate. That’s before mentioning that Casey condemned tens of millions of babies to death in the womb.
Politicians are already saying in so many words that replacing Kennedy is, more than anything else, about saving or scrapping Roe and Casey.
Most news media will portray Roe as a venerable precedent, but an honest discussion of these cases should begin with an admission of the near-universal judgment among legal scholars, not just those who oppose abortion, that Roe v. Wade was a jurisprudential embarrassment.
Abortion is very obviously not protected by the Constitution. The protection of the innocent from violence is a legitimate role for state governments. So, how did the Roe court find that states couldn’t protect the unborn from abortion?
It found a “right to privacy” “emanating” from the Bill of Rights, and that emanation cast a “penumbra” in which the court spotted a fundamental right to abort an unborn baby up to the moment of birth. The ruling held that, in effect, states may not make laws to protect the unborn baby until the seventh month of pregnancy. Even in the final trimester, the court ordered states to grant a broad “health of the mother” exception to any restrictions on abortion.
Plenty of legal scholars who support abortion rights nevertheless admit that the ruling was garbage. “[B]ehind its own verbal smokescreen,” liberal legal scholar Laurence Tribe wrote, “the substantive judgment on which it rests is nowhere to be found.”
“As a matter of constitutional interpretation and judicial method,” pro-choice Harry Blackmun clerk Ed Lazarus wrote, “Roe borders on the indefensible.”
Roe “is not constitutional law and gives almost no sense of an obligation to try to be,” wrote liberal constitutional law professor John Hart Ely of Yale, Harvard, and Stanford Law Schools.
Jeffrey Rosen wrote in the New Republic, “Thirty years after Roe, the finest constitutional minds in the country still have not been able to produce a constitutional justification for striking down restrictions on early-term abortions that is substantially more convincing than Justice Harry Blackmun’s famously artless opinion itself.”
So, in 1992, when Kennedy and the High Court had a chance to review the opinion in Planned Parenthood v. Casey, it was reasonable to expect this deformed legal aberration would be discarded. It nearly was, as Kennedy is said to have been persuaded to change sides. In the end, he produced his unique and inventive brand of judicial mysticism.
“At the heart of liberty,” Kennedy wrote in Casey, “is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Kennedy’s position suggests that everyone may decide whether the person they want to kill counts as a person. Under the pretense of refusing to declare who is a human who deserves protection, Kennedy put the Supreme Court firmly behind the position that the unborn are not humans whom states are not even permitted to protect from violence.
Kennedy added turgid and empty language about how “liberty finds no refuge in a jurisprudence of doubt.” Here, he was invoking the crutch of stare decisis, the legal principle that precedents deserve special weight and should normally be upheld. That, and that alone, is what Roe and Casey’s defenders will lean on today, amounting to an argument that because the court got this question so abominably wrong twice, it must get it abominably wrong again. In Casey, Kennedy’s liberal majority seemed to grant what all honest legal scholars will profess, that Roe was indefensible, yet they wiped that fact aside, because, hey, it was decided. Move on.
Kennedy and the court’s liberals regularly scrap non-abortion precedents far older and far better reasoned than Roe. Roe deserved no respect in 1992, and Roe and Casey deserve no respect in 2019 or whenever the court is next presented with a state trying to protect the health and safety of mothers and the lives of the smallest and most vulnerable.
Kennedy’s ruling hid naked politics behind meaningless words. It gravely harmed the court and our politics, and its body count is massive. As Kennedy, blessedly, vacates his seat, the central mandate for the man or woman who will take his seat, and for all the justices, is to wipe away a disgrace that ranks alongside Dred Scott, and overtun Roe and Casey.