Anthony Kennedy symbolizes our struggle to find common ground

The retirement of Associate Justice Anthony Kennedy has been met with apocalyptic predictions of a new Supreme Court with a majority tilted toward President Trump and conservatives. Within hours of the announcement, CNN legal analyst Jeffrey Toobin described a country where bazookas might be legal, women could be arrested for back-alley abortions, and gays would be chased from stores. He even gave a hard date of 18 months for abortion being illegal in at least 20 states.

While remarkably specific in his timeline, Toobin’s dread is shared by many who saw Kennedy as a watchful moderating force on the court, some who was the human shield protecting basic rights from an ideological attack from conservatives. Indeed, Kennedy’s departure could well mean the greatest shift on the court since the move from Chief Justice Earl Warren to Chief Justice William Rehnquist. However, too much emphasis has been placed on the loss of the court’s perennial swing vote.

{mosads}Kennedy was more than a fifth vote on a tally sheet. The real loss is not his vote but his voice. He was unique in his treatment of individual rights, speaking profoundly about the struggle of all individuals to maintain dignity and identity in this nation. His was a strong but gentle voice at the very center of our most divisive controversies, calling for tolerance of expression and association. In the internecine battles of the court, he squarely planted in the middle as a constant beacon for liberty interests.

Kennedy’s legacy of more than 30 years on the court produced some of the most defining cases of our generation. It was Kennedy who joined in the plurality decision in Planned Parenthood v. Casey in 1992 to preserve the constitutional right to choose. It was Kennedy who wrote the historic ruling in Citizens United v. Federal Election Commission in 2010 to recognize the free speech rights of corporations. He was the author of Obergefell v. Hodges in 2015 recognizing the constitutional right to same-sex marriage. On limiting the death penalty, guaranteeing due process for detainees, protecting free speech, and so many other critical national issues, it was always Kennedy who stuck the balance on the court.

Kennedy was a bridge justice who showed you can follow a conservative philosophy and still be an advocate for individual rights. Indeed, his voice was most striking and clear when he was discussing values of privacy and dignity enshrined in the Constitution. He saw no conflict in following a conservative approach to interpreting the vision of the framers and defending individual rights, particularly for insular or unpopular groups. Kennedy saw the Constitution as an expression of natural law values and not just originalist thought. That gave his jurisprudence a greater range and evolution in dealing with changes in our society and mores.

What did not change was his view of the Constitution as a bulwark against government and majoritarian abuse. Kennedy’s jurisprudence was anchored in 18th century enlightenment philosophers like John Locke and figures like John Stuart Mill. The legal theory Kennedy practiced often reflected the “harm principle” of Mill, who wrote that the “only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” Kennedy refused to accept that free speech or associations or sexual orientation could constitute harm justifying state punishment or coercion.

That powerful vision was evident back in his decision in Lawrence v. Texas in 2003 striking down the criminalization of homosexuality and, later, his opinion recognizing a constitutional right to same-sex marriage in Obergefell v. Hodges during the Obama administration. In that latter case, Kennedy declared that the “Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

Kennedy had clarity and consistency of thought in his opinions. He did not flinch from striking down a federal ban on virtual child pornography or protecting the right to burn the flag as a protest. For Kennedy, it was all free speech, not good or bad, just speech. In his pivotal decision in Ashcroft v. Free Speech Coalition in 2002, Kennedy wrote that the “right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.” He added that the court’s “First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct.”

Kennedy transcended partisan expectations to reach across ideological lines to find commonality with his colleagues over concepts like dignity. He stood alone in his unique articulation of a liberty interest in expression as opposed to more classic liberal or conservative constructs. That vision expressed an inner transcendent meaning to the Constitution. It also reflected a deeply sympathetic view of common aspects of life. Marriage was not a licensed relationship of a state but the manifestation of the “highest ideals of love, fidelity, devotion, sacrifice and family.”

Kennedy’s record amounts to a stratigraphic record of the evolution in our country from prejudice to tolerance, from exclusion to inclusion. His often nuanced take on the Constitution is not what President Trump described when he promised to move the court toward the right. Everyone understood that he was referring to Kennedy and the long awaited opportunity to replace a swing with a locked vote.

With his departure, the court will be left with two calcified ideological extremes of two camps that are less likely to reach shifting compromises on difficult social issues. The new court may now become more like our politics, turning more predictable and uncompromising in the absence of Kennedy. Opinions may become mere placeholders for a future emerging majority, as opposed to a true dialogue between jurists.

The struggle of Kennedy to strike a balance on the court is deeply reflective of the struggle of this country over the last 30 years. It was Kennedy who often stepped forward to protect our most vulnerable rights and individuals. It was his voice that reminded us of our better angels. Perhaps the collective panic over his departure reflects our continued insecurity over our capacity to inflict harm upon ourselves.

However, the key lesson that Kennedy leaves with us is that we are not the sum of our insecurities but, rather, of our ideals. We have the ability to transcend our divisions and find common value in our identity as free people. That reassuring voice will continue to reverberate in the cases that Kennedy left over the course of his brilliant career.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.