Anthony Kennedy's Dubious Legacy

Amidst the sound and the fury surrounding the announced retirement of Justice Anthony Kennedy, David Brooks has shone the cold light of reason on the Kennedy legacy.

Nowadays the nation is so starkly divided between left and right that people are either agonizing or thrilling to the prospect of a new Supreme Court justice. In a nation where nary a day passes when some purportedly serious thinker bows down to our sacrosanct democracy, the only vote that really seems to count is the vote taken by nine justices on the Supreme Court. After all, if the people vote democratically in a referendum or in the person of their legislators to do the wrong thing, five justices can erase it with a stroke of their pens.

Brooks does not address Kennedy’s voting record or even the future of the Court. He hones in on Kennedy’s philosophical views— one would be hard put to call them judicial— about human identity and human autonomy. He shows that Kennedy led the charge away from community and toward the autonomous and self-defining individual.

To give you a taste of the Kennedy reasoning, I cite this passage from Kennedy’s decision in Obergefell v. Hodges:

Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. See Duncan v. Louisiana, 391 U. S. 145, 147–149 (1968). In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.

Without prejudice toward the Due Process clause and the ensuing legal wranglings over its application, Kennedy was stating what amounts to a piece of philosophical nonsense. In truth, no individual is perfectly autonomous. No individual has absolute freedom to define his identity. To call these choices intimate muddies the question even more.

Brooks is correctly horrified at this atomization of human society, through a complete and utter disregard for the social bonds that define who we are, that impose duties and responsibilities, that make us citizens of the Republic.

Justice Anthony Kennedy didn’t invent the shift from community to autonomy, but in 1992 he articulated it more crisply than anyone else: “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.”

In this sentence, which became famous as the “mystery of life” passage, there is no sense that individuals are embedded in a social order. There is no acknowledgment of the parts of ourselves that we don’t choose but inherit — family, race, social roles, historical legacies of oppression, our bodies, the habits that are handed down to us by our common culture.

Kennedy's concept of self-definition is a philosophical aberration. It removes individuals from the social order and allows them complete freedom to be whoever they want to be. Which might work, until you ask yourself how anyone else is going to know which You they are dealing with at any particular moment. In a world where each individual freely defines himself, society cannot function. It’s like having a language in which everyone has the right to choose his own pronouns.

Brooks explains:

There’s no we. We are all monads who walk around with our own individual opinions about existence, meaning and the universe. Each person is a self-created choosing individual, pursuing individual desires. There is no sense that we are part of a common flow connecting the past, present and future; instead, each of us creates our own worldview anew.

Worse, Brooks continues, the Kennedy concept eliminates truth and objective fact. You cannot have your own facts and society cannot function if there are no shared truths:

The first problem with this definition of freedom is that it pushes society toward a tepid relativism. There are no truths, only “concepts.” You define your concept of the meaning of the universe, and I define mine, and who are any of us to judge, let alone impinge upon, that of another? Furthermore, it’s a short road from getting to define your own truth to getting to define your own facts.

Brooks continues that the Kennedy perplex compromises the rules and the values that define human society. If you can have your own truths and your own facts,you can also have your own rules. Worse yet, it absolves people of the responsibility to transmit the ethic that determines how we function.

You wind up with a society in which the schools, the public culture, even the parents say: It’s not our job to instill a shared morality and worldview from scratch. That’s something you have to do on your own. The practical result, given this impossible task, is that most people wind up without a moral vocabulary, with only scattered shards of values, with no firm foundations for when times get tough.

In a concluding text, Brooks makes a point that Confucius had made previously. If people cannot regulate their behavior and their social conduct according to custom and tradition, and according to their moral sense, we will need an omnipotent state to regulate it for them. Said state will be more like a police state that regulates by threat of punishment, not by encouraging people to do the right thing.

Which leads to the third big problem with the “mystery of life” passage. You’d think it would lead to a very small state that would leave a lot of freedom for people. In fact, it leads to a big, intrusive state. If you strip away all the communal commitments that help people govern themselves from within, then very soon you find you have to pass all sorts of laws to govern them from without. If you privatize meaning so that people get to follow their unrestrained desires, they immediately start tramping on one another, and public pressure grows for restrictive laws, like hate speech regulation, to keep things from getting out of control.