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?

Justice Anthony Kennedy. Click image to expand.
Justice Anthony Kennedy

"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," wrote three justices of the Supreme Court in Planned Parenthood v. Casey, the 1992 case that dramatically "reaffirmed the essential holding" of Roe v. Wade and thus upheld a woman's right to choose to have an abortion. In the wake of the court's latest decision on so-called "partial birth" abortions, Gonzales v. Carhart, the real human mystery is the majority opinion's author, Justice Anthony M. Kennedy. Kennedy puzzles because he speaks in more than one voice. One Kennedy has written landmark opinions affirming the dignity and autonomy of gay men and lesbians (and was one of the three justices who extolled the "heart of liberty" in Casey). The other, in Gonzales, employs rhetoric that reduces pregnant women to something like moral wards of the state—to be protected from their own feckless choices. How to square the two men? It's not an easy puzzle, but it's an important one: Kennedy is among the most powerful men in America.

Kennedy is what Justice O'Connor used to be—the swing vote on a court balanced between a hard-right bloc and a moderate-centrist bloc. But where O'Connor could be unpredictable, Kennedy is all but inexplicable. In Romer v. Evans, he denied the power of a state to strip gays and lesbians of all civil rights protections, and in Lawrence v. Texas, writing for a majority in striking down a sodomy statute aimed at gay men, Kennedy eloquently protected intimate moral decisions. "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct," he wrote. For this reason, "adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons." Moral disapproval by the majority did not, he argued, justify use of "the power of the state to enforce these views," and judicial approval of such laws "demeans the lives of homosexual persons."

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It was the other Anthony Kennedy who wrote an opinion last week upholding the federal partial-birth abortion ban. That Kennedy not only intruded on the private, intimate, and autonomous choices of pregnant women, but did so because he thinks these women aren't trustworthy enough to make them. "Whether to have an abortion requires a difficult and painful moral decision," he writes in Gonzales. "While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained." That regret might later cause "severe depression and loss of esteem."

The logic of Casey has now been stood on its head: The government must protect women, not against "undue burdens" the state has placed on their intimate freedom, but against their own bad choices. In Roe, the court protected medical privacy; in Casey, it guaranteed autonomy; in Gonzales, it speaks as what lawyers call parens patriae, the protector of children and the incompetent.

In trying to reconcile Kennedy's dual visions of privacy, two possibilities emerge: Either he simultaneously holds two vastly different constitutional notions of privacy and autonomy—one for gay men and one for pregnant women—or all this has nothing to do with the Constitution.

It's reasonable to question whether the issue of abortion, for Kennedy, is personal. His opinion in Gonzales, like his dissent in the "partial-birth abortion" case that went the other way in 2002, betrays his feeling of special and visceral horror of it. Professor Geoffrey Stone of the University of Chicago recently suggested that the result in Gonzales stems from the religious beliefs of the five-justice majority, who are all Catholics. That calculus may be far too simplistic. (Kennedy was also Catholic when he signed on to Casey, after all). Still, it is certainly true that religious people of many faiths have historically idealized (and also infantilized) pregnant women. Kennedy wrote in Gonzales that "respect for human life finds an ultimate expression in the bond of love the mother has for her child." In his view, abortion violates a woman's very nature.

All of us hold beliefs that, from the outside, seem contradictory. Usually they stem from some combination of biography, education, and temperament. Justice Lewis F. Powell Jr. was a kind of reverse Kennedy: A firm supporter of Roe, he was clueless about gays. As a private lawyer, John C. Jeffries Jr. writes in his biography of the justice, Powell represented a young man whose girlfriend had died during a botched illegal abortion. That opened his eyes. But he voted in Bowers v. Hardwick to uphold a Georgia sodomy statute and told a clerk he had never met a homosexual. (He was wrong, of course—that very clerk was a gay man, unbeknownst to Powell.)

Perhaps somewhere in Kennedy's life is a gay relative, friend, or teacher who showed him that, as he wrote in Lawrence, gay people "are entitled to respect for their private lives." Or perhaps his background as a California Republican led him to some broader acceptance of the personal moral choices of homosexuals. But that respect for intimate moral choices doesn't extend to pregnant women.

Kennedy's Gonzales opinion is also personal in that it reflects some outrage toward his Casey co-authors. News accounts suggest that Kennedy originally voted in Casey to overturn Roe but belatedly switched sides and joined justices O'Connor and David Souter in narrowly "reaffirming" the right to choose. But when the court first tackled the partial-birth abortion issue in 2002, in Stenberg v. Carhart, Kennedy was infuriated by a new majority's conclusion that in light of Casey, Nebraska couldn't ban the procedure without allowing for an exception for a woman's health. In a seething dissent, Kennedy painted a grim and detailed picture of the procedure, in which a doctor brings much of an unborn fetus through the birth canal, then cuts open the fetus's skull and vacuums the contents to allow it to pass. This bore a strong "resemblance to infanticide," he wrote. He felt that allowing physicians to perform it—even when they considered it essential for the mother's health—"might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus."

This dissent suggests that Kennedy felt betrayed by Souter and O'Connor. So it shouldn't be a shock that, as the deciding vote in Gonzales, he used the case to push back hard. In Kennedy's view, Gonzales reaffirms Casey, rebalancing the state's prerogative to limit abortion. Stenberg was a misreading, an aberration, and a step beyond in his eyes.

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.

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

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