How to use Justice Kennedy’s legacy in picking his replacement
One legacy that Justice Anthony Kennedy leaves as he retires after three decades on the US Supreme Court is some principled guidance on how to hold a dignified debate over choosing his successor. As members of the Senate arm themselves for a battle royal over President Trump’s nomination, they may want to build on, rather than ignore, his judicial legacy.
When he wrote the court’s official opinions, Justice Kennedy often sought a path for many of those who lost their legal case to see their views expressed in policy. This went far beyond his strong defense of free speech. Governance to him was not a zero-sum choice between the demands of the left and the right but rather a search to define what he called “transcendent” attributes and the “spiritual imperatives” necessary for a complex world.
Before Elena Kagan joined the high court as a justice, she described Kennedy as its most influential member because of his “independence, his integrity, his unique and evolving vision.” In many of the court’s biggest decisions, he was the swing vote, and for good reason. He sought to interpret the Constitution in ways that could ensure that the inner conscience of individuals and their outward responsibilities were not in conflict.
To achieve that, he relied heavily on the basic principles of liberty, privacy, and universal equality, then mixed all three to emphasize the intrinsic value of dignity.
In Kennedy’s focus on dignity – either to preserve it or bestow it – he saw the makings of social cohesion and healing. Or as he put it in a talk, “Most people know in their innermost being that they have dignity and that this imposes upon others the duty of respect.”
Such thinking was usually evident, if not always accepted, in his most important rulings, such as those on campaign finance, same-sex marriage, religious exercise, and the rights of detainees at Guantánamo Bay. In many cases, he saw the best course to ensure the continuance of dignity was to set boundaries on government power. In others, he saw such power as necessary to end any harm to dignity.
Dignity is not something defined from the outside. Each individual is endowed with it. Guarding it in the way Kennedy did can help engender respect for the dignity of others.
Dignity is not a source for division but, if recognized, can be the basis for what Kennedy calls the best interpretation of the “mandates and promises” of the Constitution. “I am searching, as I think many judges are, for the correct balance in constitutional interpretation,” Kennedy stated.
Dignity was his lodestar. And perhaps it can also be the starting point for the coming national discussion over his replacement.
