August 16, 2006

Justice Kennedy: Philospher King.

Justice Kennedy’s theories of judging remind us the court still lacks a solid constitutionalist majority.

OpinionJournal’s Political Diary

Look Out, World, Justice Kennedy Is Here to Help

Justice Anthony Kennedy was a keynote speaker at the annual American Bar Association convention in Waikiki, Hawaii. Addressing a gang of lawyers sipping Mai Tais on Saturday, he spoke about the rule of law and democracy. He underscored the significance of law in people's lives, viewing law as a spirit, a "liberating force... a promise, a covenant" that lets one "dream...dare...plan."

Inspiring, yes, but what does this mean in the realm of constitutionalism?

For Justice Kennedy, law and justice have a purpose, which is to "improve human existence." Perhaps the nobility of his vision will earn him a Nobel Prize; but in the interim, watch out.

This fall, the Court will tackle two important cases, Gonzales v. Carhart and Gonzales v. Planned Parenthood, which threaten the Partial Birth Abortion Ban Act of 2003. For those who have doubts about how Mr. Kennedy might rule here, you should know that the entire abortion debate in the country bears his stamp. In 1992's Planned Parenthood v. Casey, he retreated from a conservative majority that would have overturned Roe v. Wade and instead formed a plurality with Justices O'Connor and Souter that upheld the 1973 verdict.

Also upcoming is Environmental Defense v. Duke Energy, which brings into question the EPA's implementation of the Clean Air Act. If his treatment of this term's Rapanos wetlands case is any indicator, he's likely to discover another "significant nexus" that allows more aggressive regulation than a unanimous appeals panel was ready to permit. Affirmative action is also back: Cases from Seattle and Kentucky bring into the limelight high schools that do not admit white students on the pretext of "racial balancing." Justice Kennedy's adulation of law's ability to "improve human existence" may swing the vote here in favor of such discriminatory policies carried out in the name of social justice.

If Justice Kennedy believes that law serves to promote social justice, we can certainly expect an undercurrent of activism guiding his maverick opinions. To him, law is a living, breathing organism that can fix all the problems on the planet. To us, and to the majority of America, the law is the one constant in these tumultuous times that keeps us sane and free.

-- Abheek Bhattacharya

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