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Anthony Kennedy: Reagan’s Worst Mistake

The price we paid for the borking of Robert Bork.

Left: Justice Anthony Kennedy is seen at the U.S. Supreme Court building in Washington June 1, 2017. The 81-year-old Californian said June 27 that he will retire July 31. (CNS photo/Jonathan Ernst, Reuters). Right: President Ronald Reagan speaking in Minneapolis, Minnesota, 1982. (Wikipedia)

The year was 1987. It was fall. It was November 11. It had been a tough year for President Ronald Reagan. Liberals were going bonkers with Iran-Contra as a hopeful tool to destroy a great president on the verge of winning the Cold War. The media was dubbing Iran-Contra the worst mistake of Reagan’s presidency. It was not. What happened on November 11, 1987 would, in due course, constitute the worst mistake of the Reagan presidency: the nomination of Anthony Kennedy for the U.S. Supreme Court.

The Kennedy pick was supposed to calm the waters after the storm generated by the Robert Bork and Douglas Ginsburg nominations. Bork would have been a brilliant justice, but leftists savaged the man, transmogrifying him into an ugly beast — a gargoyle. Bork suffered the ignominy of the likes of Senator Ted Kennedy portraying him as “anti-woman.” A new verb was introduced into the political lexicon: the process of being “Borked.”

In the end, Anthony Kennedy got the nod, and was sworn in February 18, 1988. His subsequent 30 years of judicial decisions literally redefined things as basic as life and marriage. His calamitous three decades on the court will be followed by an endless maze of legal-cultural wars and church-state battles dealing with the disastrous dust-up of what he unleashed.

It’s ironic that Kennedy exits after having made some decent decisions in recent days, including on cultural hot-buttons like the Masterpiece bakeshop case and the California abortion case. Such decisions do not begin to redeem what Kennedy did. Among his 30 years at the Supreme Court, two especially odious decisions stand out:

The first was the June 1992 case, Planned Parenthood v. Casey, the latter being Pennsylvania’s governor, the late Bob Casey Sr., who represented something now near-extinct: a pro-life Democrat politician. Casey lost in a 6-3 vote that affirmed a constitutional right to abortion in all 50 states. This pivotal case flatly preserved Roe v. Wade. And Kennedy led the majority with one of the most breathtakingly outrageous statements in the history of jurisprudence: “At the heart of liberty,” averred Kennedy, “is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

To repeat: “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.”

Tens of millions of unborn babies would continue to be legally aborted courtesy of that bucket of philosophical hogwash.

And hogwash it was. Had Anthony Kennedy been in Philadelphia trying to peddle that bunkum in 1776, the Founders would have either ordered him a straight-jacket or chased him out of the hall with torches. Imagine telling John Adams and James Madison that “liberty” is the right of every individual to define his own meanings of life and existence and the universe and human life. That was plainly not the Founders’ conception of liberty, nor a Judeo-Christian conception. Adams would have burst at the seams snapping at Kennedy: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

Freedom, properly discerned and practiced, isn’t about the freedom of a slim majority of robed justices — let alone a country of 300 million people — coming up with their own definitions of reality.

In fact, the president who appointed Kennedy could have given him a tutorial: “At its full flowering, freedom is the first principle of society; this society, Western society,” said Ronald Reagan at Georgetown University in October 1988. “And yet freedom cannot exist alone. Each reinforces the others, each makes the others possible. For what are they without each other?” This is why, said Reagan, quoting Tocqueville: “Religion is more needed in democratic societies than in any other.”

Reagan called faith and freedom the “twin beacons” that “brighten the American sky.” Take away one of those beacons and the sky is darker. Take away one and you cannot see with the full clarity of vision to navigate the nation.

But for Anthony Kennedy, liberty, existence, the universe, human life, and meaning itself is whatever one wants it to be (or whatever a court majority wants it to be).

To behold such sophistry emanating from our nation’s judicial elite is a sad sign of how far we’ve sunk. And yet, in a sense, Kennedy captured the zeitgeist.

Behold the statement again: “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.”

Any self-respecting Poli Sci prof would flunk a student who handed in a paper filled with such bull-session nonsense. Of course, 90% of those professors are leftists; thus, they would happily accept the gibberish in service of their ideological agenda. It gives them their “abortion rights.” It gives them their “marriage equality.”

That brings me to the other Kennedy decision, uniquely brazen in its sheer ludicrousness: the June 2015 Obergefell decision.

There, in one fell-swoop, this master of judicial creativity rendered unto himself — with the help of four liberal friends — the astonishing ability to redefine the multi-millennia, natural, Biblical, Western, Judeo-Christian conception of marriage. Since the dawn of humanity, over 99.99% of human beings who have bestrode the planet shared the consensus that marriage is, by its very nature, between a man and a woman. It’s an institution not ours to change. But that didn’t give pause to Kennedy and fellow human-nature redefiners. Not in their new America. Not in America after Planned Parenthood v. Casey, where meanings are subject to the whim of whatever we mean them to mean.

And so, in Obergefell, rendered on June 26, 2015, Anthony Kennedy and four liberals took it upon themselves to legally redefine marriage from the bench and impose their judicial fiat upon all 50 states. In an unprecedented display of judicial conceit, Kennedy and comrades arrogated unto themselves the right to create their own definition of marriage — a right theretofore restricted to the laws of nature and nature’s God.

If you were surprised by that spectacle in June 2015, you shouldn’t have been in light of June 1992. Once we’ve established the right to conjure up our own definition of existence, of meaning, of the universe, and of life itself, then conjuring up our own definition of marriage is small potatoes. Welcome to Anthony Kennedy’s America.

And so, alas, why did Ronald Reagan pick this man to serve on the high court?

Anthony Kennedy’s situation is yet another example of so many failed court picks that ran far afoul of a president’s original expectations. I can speak to this with intimate knowledge, which I learned from a good friend, Judge Bill Clark, who was a good friend to Kennedy.

Clark was the closest adviser to Ronald Reagan. Reagan offered Clark the Supreme Court seat that went to Sandra Day O’Connor in 1981. Clark turned it down, instead taking the helm at the National Security Council, where he would lead the effort to defeat the USSR.

When Reagan was governor of California, he appointed Clark to the California Supreme Court in Sacramento. There, Clark had a close relationship with Anthony Kennedy, who served there on the federal bench. They had regular lunches together.

As Clark’s biographer, I was privy to his ongoing grave concerns over Kennedy’s decisions at the U.S. Supreme Court. Clark warned me often that Kennedy was a person “unusually influenced” by his surroundings. He always feared that Kennedy, though a moderate-conservative, would blow with the wind of prevailing opinion in Washington and its liberal-progressive circles. As Clark noted, that’s exactly what happened with Kennedy in Planned Parenthood v. Casey. To Clark’s knowledge, Kennedy had been pro-life, but his pro-life convictions failed him and his nation when tested and influenced by peers.

Clark didn’t live to see Obergefell leveled by Kennedy in June 2015. If he had, I don’t know his heart could’ve handled it.

To be sure, there have been worse Supreme Court justices than Anthony Kennedy; in fact, four reside on the high court right now: Breyer, Ginsburg, Kagan, and Sotomayor. But it’s hard to find a worse disappointment than Anthony Kennedy. The entirety of all his good decisions will never outweigh the human damage of his catastrophically bad decisions.

(This article was first posted at The American Spectator and appears here courtesy of Dr. Kengor.)


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About Dr. Paul Kengor 47 Articles
Dr. Paul Kengor is professor of political science and executive director of the Center for Vision & Values at Grove City College. His books include The Crusader: Ronald Reagan and the Fall of Communism, Dupes: How America’s Adversaries Have Manipulated Progressives for a Century, and, most recently, Takedown: From Communists to Progressives, How the Left Has Sabotaged Family and Marriage.

7 Comments

  1. Was Bork all that great? Wasn’t he the third person in the Nixon Watergate fiasco who fired, on crazy Nixon’s order, Archibald Cox as special council? Didn’t Bork show the Republicans his metal as a jurist writing the book “Slouching Left”?

    So we continue to weave a strange web when we fail to give the entire context of Bork and Nixon. Bork was also reluctant to fire Cox, but he did. I wonder if Bork, having observed Trump’s nominees, would write another book “Slouching Right”?

  2. Why hasn’t Anthony Kennedy been formally declared by all the bishops in the USCCB to be excommunicated, whether latae sententiae or ferendae sententiae, for his horrendously immoral decisions upholding abortion and homosexual marriage as constitutional rights? If the USCCB and its bishops cannot act in such a notorious, pertinacious, and objectively verifiable case, why should it and their authority be repudiated as forfeited?

    • Now, now. With everything that has happened, you still believe that the USCCB is Catholic with spine to boot? A tiny few are. But the rest are a bigger disappointment than Kennedy. What Muller said about German Bishops converting to the world applies equally to the USCCB.

  3. Good riddance to Kennedy. The damage he’s done is incalculable. One only hopes the Senate GOP has the strength to get another Gorsuch-like nominee through.

    I also fear John Roberts may become the next Anthony Kennedy, “’unusually influenced’ by his surroundings” and greedy of the attention that comes with being the “swing vote” on high-profile cases. He’s shown signs already with his inexplicable flip-flop upholding the individual mandate of Obamacare (by all accounts he had originally written what became the dissenting opinion as a majority opinion, then flipped sides at the last minute. Makes one wonder whether someone in Washington got to him and has some dirt on him that forced him to cave).

    What’s more problematic in general is that a single Supreme Court justice should matter so much. Far too much power has been arrogated to the Supreme Court in deciding contentious political and moral issues that should remain in the political arena and left to the states, the voters, and their representatives, rather 5 justices essentially having dictatorial power to decree new “rights” and circumvent the normal political process, as they have done with abortion and homosexual so-called “marriage”. In a sane republic, one or two Supreme Court justices shouldn’t have such an outsized political and social impact.

  4. Kengor is correct about Justice Kennedy. Chief Justice Rehnquist presided over the Casey case and in his dissenting Opinion said in like words We cannot further the taking of human life. He wasn’t Catholic. He based his decision on reason implying that the Catholic position in defense of Life is reasonable not simply idiosyncratic religion. A Kennedy represents the new nominal Catholicism that long preceded the R Bork rejection by progressive Catholics Senator E Kennedy among the more egregious. Kennedy allegedly said on his deathbed Perhaps I was wrong on abortion and need to renew myself with God. I hope an acceptable form of confession if that’s where his contrition remained.

    • Senator Kennedy was Catholic by virtue of his Baptism only. I am not judging him but I am aware of his personal life and his political decisions. They certainly are not decisions made by a practicing Catholic.

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