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A Justice Who Will Live in Infamy

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To the joy of authentic conservatives all across America, Anthony Kennedy announced his retirement this week from the United States Supreme Court. As if signaling his upcoming departure, Kennedy joined the conservative majority in a flurry of very important opinions published toward the very end of his last term - opinions that protected First Amendment protections for crisis pregnancy clinics, Christian wedding vendors, and non-union members, and upheld the president’s authority to restrict immigration in order to protect national security. 

It is almost as if Kennedy was seeking to atone for something, to atone for his judicial misdeeds of the past 32 years. And perhaps he was. 

Justice Kennedy’s legacy, sadly, is that future generations will note that he was the author of the five worst Supreme Court rulings since 1992. He will be forever known as the man who did more to protect the slaughter of the unborn and to advance sexual deviancy than any other man in American history. 

In Planned Parenthood v. Casey (1992), he passed on the opportunity to overturn the infamous Roe v. Wade decision of 1973. Kennedy instead wrote the majority opinion in which he defended the practice of abortion while prohibiting a husband from being notified that his wife was terminating the life of his child. While Casey did uphold parental consent for minors, informed consent for mothers, and waiting periods, it also introduced the entirely subjective and vague “undue burden” standard, a standard which is entirely in the eyes of the beholder. Since Casey, approximately 30 million babies have been torn from the wombs of their mothers, dismembered in the process, and dumped as medical waste. This is roughly the death toll attributed to Adolf Hitler in WWII. 

Sadly and grotesquely, eight of the nine members of the Casey Court had been put on the bench by presidents Reagan and George H.W. Bush. The only Democrat appointee in the entire lot, Byron White, voted for life. It is also worthy of note that Antonin Scalia, in his dissent, correctly noted that abortion cannot possibly be a constitutional right for the simple reason that there is no right to abortion in the Constitution. 

In Romer v. Evans (1996), Kennedy wrote the majority opinion which prohibited the state of Colorado from amending its own state constitution to prevent special rights based on sexually deviant behavior and to protect schoolchildren from indoctrination into the homosexual lifestyle. 

In Lawrence v. Texas (2003), Kennedy wrote the majority opinion that overturned the Court’s own ruling in Bowers v. Hardwick from 1986 (so much for the sacrosanct, binding nature of Supreme Court precedents!). In Bowers, the Court ruled that states could criminalize homosexual conduct; just 17 years later, in Lawrence, the Court ruled that they couldn’t. This despite the fact that homosexual conduct had been contrary to public policy in every jurisdiction in the United States from the Founding until 1962 when Illinois foolishly legalized it. It was still contrary to public policy in 24 states when, thanks to Kennedy, the Court ran roughshod over the will of the people in half the country. 

In Lawrence, Kennedy wrote, “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.” That might be suitable for a sappy greeting card, but as an expression of jurisprudence, it is incomprehensible gibberish. 

In 2013, Kennedy cast the deciding vote and wrote the majority opinion in Windsor v. United States, in which the Court invalidated the Defense of Marriage Act (DOMA) of 1996. DOMA preserved the right of each state in the Union to decide the definition of marriage for itself and declared that, for federal purposes, marriage would be defined as the union of one man and one woman. DOMA passed with overwhelming, veto-proof majorities in both houses - 342-67 in the House, 85-14 in the Senate - and was signed into law by Democratic president Bill Clinton. None of that mattered to a homosexual activist like Kennedy. 

And, finally and disastrously, Kennedy administered the coup de grace by casting the deciding vote and writing the majority opinion in Obergefell v. Hodges (2015), in which Kennedy led the charge to impose same-sex marriage on the entire country. This despite the fact that 44 states in the Union had constitutional amendments or laws that prohibited recognition of such unions. Will of the people? Shmill of the people. Tenth Amendment? Shmenth Amendment. 

The editors of National Review had this scathing and altogether correct assessment of Kennedy’s judicial career: 

No justice, right or left, was more willing to substitute his judgment for that of elected officials and voters. No justice was less willing to tie himself down to clear rules or a legal philosophy that would constrain him in future cases, let alone rules or a philosophy that bore a plausible relation to the Constitution. We moved toward a system of government no Founder intended, in which his whim determined policy on a vast range of issues. 

Goodbye and good riddance.

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