by Mitch Kokai
Senior Political Analyst, John Locke Foundation
I’ve started to think that Supreme Court Justice Anthony Kennedy may be the one man preventing the United States from political breakdown.
Now, let me clear the decks a bit. I often find Anthony Kennedy’s jurisprudence ridiculous. And I find his self-regard utterly repulsive. He once told an audience that it was his duty to “impose order on a disordered reality.” He talks about his decisions as if he were the Tolkeinesque protagonist of the American story, beset by a fundamental loneliness while venturing to save the world. I don’t buy this self-conception for a second.
But I’ve come to believe that the Supreme Court has been playing a curious role in the American regime, one that isn’t assigned to it in the Constitution or by its post–Marbury v. Madison history. Technically, its role should be to declare whether or not this or that piece of legislation or executive-branch initiative is constitutional. This is what it claims to do. …
… The Supreme Court’s role in this scene, with Kennedy as the swing justice, has been to moderate and restrain the ambitions of each party. Kennedy deals out victories and defeats to each side — giving slightly more defeats to social conservatives. In effect, he constrains what each side can do to the other. His mercurial jurisprudence replicates and even gives the savor of legitimacy to a closely divided country.