Anthony Kennedy made it onto the highest court in the land due, it could be argued, to marijuana and a penumbra.
When a vacancy on the U.S. Supreme Court became available in 1987, Ronald Reagan nominated two other men before settling on Kennedy, the president’s third choice.
Douglas Ginsburg withdrew from consideration after admitting to using marijuana while a law school professor. The first choice had been Robert Bork, who was taken out of consideration because of a decade old-penumbra (i.e., a group of rights derived, by implication, from other rights explicitly protected in the Bill of Rights).
In the case of Griswold v Connecticut (1965), the Supreme Court struck down a state law prohibiting the possession, sale, and distribution of contraceptives to married couples. In deciding Griswold, the justices found within the Bill of Rights various “penumbras” and “emanations” that create “a zone of privacy.” Later court rulings substituted the term “zone” with “right,” making it possible to find innumerable “rights of privacy” within the Constitution that had previously remained undiscovered.
Penumbra of Privacy Leads to Death
The most notorious example came in 1973, when the Court concluded in Roe v. Wade that while the Constitution “does not explicitly mention any right of privacy,” the “right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.” From that penumbra they concluded, “This right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
Judge Bork rejected the idea that there was a “zone of privacy” secretly embedded in the Constitution. “Constitutional guarantees not only have contents, they have contours that set limits,” Bork said in his confirmation hearing.
Democrats in the Senate recognized that by rejecting the penumbras of privacy Bork was rejecting the recently created right to abortion. So the Democrats rejected his nomination.
When the Senate confirmed Reagan’s third nominee, the president claimed that Kennedy was a “true conservative.” Yet four years later, Kennedy joined Justices Sandra Day O’Connor and Justice David Souter in writing the court’s plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey. The Casey decision not only reaffirmed Roe but also imposed a new standard to determine the validity of laws restricting abortions.
Notorious Mystery Passage
In the 1992 opinion Kennedy included what the editors of First Things dubbed the “notorious ‘mystery passage’”: “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.” You’d search in vain to find a more apt description of our secular age. It’s not as though Kennedy invented our culture of expressive individualism. No one would fault him for introducing our “age of authenticity,” to borrow a phrase from philosopher Charles Taylor.
But Kennedy gave language to this age’s turn to self as ultimate authority. And then he codified that authority at the nation’s highest legal level through his interpretation of the Constitution. Without the “right to define one’s own concept of existence” and “the mystery of human life” we would not still today have the legal right to deny existence to babies in their mothers’ wombs. We would not have the right to deny these helpless children, our very offspring, their own chance to define the mystery of human life. Abortion is the fruit of a culture that cannot live for or even imagine anything meaningful beyond the self. Abortion is the cost we pay to ensure the self will not be encumbered by the consequences of its choices. Abortion is the reason Kennedy’s retirement triggered apocalyptic predictions from the gatekeepers of this self-centered morality.
Kennedy’s “notorious mystery passage” would re-emerge in another age-defining Court decision. Writing for the 6-3 majority in the 2003 decision Lawrence v. Texas, Kennedy once again returned to what fellow Justice Antonin Scalia denounced as the “famed sweet-mystery-of-life passage” that “ate the rule of law.” This decision struck down anti-sodomy laws, which would eventually pave the way for perhaps the most significant decision of our lifetime, Obergefell v. Hodges, which invalidated all laws that defined marriage as between one man and a woman. Once again Kennedy would join the Court’s liberals and write the majority 5-4 decision.
We could argue for years and never conclusively determine whether politics and law are downstream from culture or if politics and law shape our culture. Undoubtedly the streams flows both directions. Whatever direction you identify, you can see how Kennedy, more than anyone else, moved to the wrong side of the law all who recognize authority in the divine lawgiver or even in our nation’s own legal history. In this new legal atmosphere, God cannot violate the sovereign self. Tradition may not bound the sovereign self. Whatever the self determines is right; whatever the self determines must be acknowledged and accepted by every other self.
How we’re supposed to get along in a society ruled by every man, woman, and child who survives birth, Kennedy never told us. He did show willingness to afford religious believers the freedom to exercise their conscience in more recent decisions, including Masterpiece Cakeshop v. Colorado Civil Rights Commission. He concurred with the 5-4 majority in defense of Hobby Lobby. And he joined the 7-2 majority that ruled for Trinity Lutheran Church.
Still, Kennedy leaves the Court at a time when sovereign selves across the political spectrum regard their political enemies as existential threats to their “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” That’s because the self cannot possibly carry this burden. And society cannot long endure when every self wields this right as a bludgeon against every other self that reaches different conclusions on the meaning of the universe and its very own life.
The genius of America is the right to life, liberty, and the pursuit of happiness. In a misguided effort to expand liberty, Kennedy denied life to our most vulnerable citizens, and he thwarted the pursuit of happiness by saddling the self with impossible demands. He ruled on the nation’s highest Court at a time when conservatives and liberals have ceded unprecedented power to nine unelected, lifetime justices, so they can adjudicate fights we share no common concern to settle ourselves.
The solution is not just to replace Kennedy with a justice who views the Constitution differently. The solution is to ask God that he would give us a Court—indeed, a whole government—that seeks justice, corrects oppression, brings justice to the fatherless, and pleads the widow’s cause (Isa. 1:17). We don’t just need to shift the Court in a different direction. We need a society that recognizes the self is a cruel taskmaster and incompetent peacemaker. We need a society that turns toward God, who has endowed each one of us with the privilege of caring for each other and all creation as we bear his image.