Will the real Anthony Kennedy please stand up?

The law, lawyers, and the court.
April 27 2007 6:01 PM

The Sphinx of Sacramento

Will the real Anthony Kennedy please stand up?

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But to get where he wants to go, Kennedy has penned a truly baffling opinion, tethering his analysis to the slender reed that some women come to regret their abortions and should thus be protected from their bad decisions. That paternalistic rationale was never mentioned in the Stenberg dissent, which recognized that the abortion choice itself, and its moral consequences, remained a matter between a woman and her physician. Indeed, this particular brand of paternalism has never shown up in a Supreme Court opinion of any kind before. One is left to wonder whether the common thread in Gonzales and Lawrence is this very paternalism: Kennedy protects homosexuals from wicked legislatures; Kennedy protects pregnant women from themselves.

Of course, there are two possible distinctions between gay sex and abortion. One involves at least potential life and the other does not. But as Justice Ginsburg noted, dissenting in Gonzales, the partial-birth abortion ban doesn't prevent the ending of fetal life; it simply bans one procedure while allowing another.

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The second difference is that, to Kennedy and many others, the partial-birth procedure at issue (intact D&E) is particularly gruesome. But if the basis of the ban is to protect the woman from later remorse, the details of the procedure aren't really the issue. If a pregnant woman cannot be trusted to weigh the consequences of this procedure, there's no reason for the state to respect her "own concept of existence" in regard to the general decision to choose. Her autonomy isn't the solution, it's the problem.

Our search for consistency may be a journalistic snipe hunt. Kennedy notoriously agonizes over the proper result in a case. Once he's made his decision, observers suggest, the logic supporting it is secondary. That said, his opinions frequently include lofty language about freedom, morality, and privacy that renders them harder to reconcile with one another. Any time you start trying to define the very "heart of liberty," consistency among your various cases becomes tricky.

Justice Kennedy may simply be coming home. By all accounts he paid a price among conservatives for his apostasy in Casey, and the opinions in Romer and Lawrence have earned him unshirted hell from the religious right. At bottom, Kennedy has always been very conservative. His gay rights opinions may merely be the outliers.

Ultimately, though, Kennedy's contrasting voices remind us that appellate judges can decide issues as people rather than as detached logicians. Gonzales highlights a truth that gets lost whenever we mystify the courts too much: Somehow the one sitting justice who has written most eloquently about moral autonomy and dignity and choice in one context has now, in another, endorsed a view of women that would be at home in the awful world of Margaret Atwood's The Handmaid's Tale.

Garrett Epps is professor of law at the University of Baltimore and legal affairs editor for the American Prospect. His book Wrong and Dangerous: Ten Right-Wing Myths About the Constitution will be published in September.

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.