< ------ Some Guy .... ?! ... !!!!! :
https://www.wsj.com/articles/anthony-kennedy-culture-warrior-1498517767" Anthony Kennedy, Culture Warrior "
" Judicial decrees on difficult moral questions have made our politics bitter. '
By William McGurn
" So Anthony Kennedy is apparently sticking around.
For a while Democrats who have lost the House, lost the Senate and lost the White House were having conniptions over the thought they might soon lose what Justice Antonin Scalia once described as their “super-legislative” power: the Supreme Court. At the Washington Post Ruth Marcus called the prospect of Justice Kennedy’s retirement “terrifying and terrible.” Because notwithstanding his many sound opinions—this is the same justice who gave us Citizens United, upholding First Amendment speech rights—on the court he nevertheless plays an indispensable role for American progressives: culture warrior.
On issues best fitted for federalist solutions, such as abortion and marriage, Justice Kennedy has proved himself a reliable voice for the animating impulse of modern American progressivism. This is the idea that the American people cannot be trusted to decide certain issues and so must yield, as he once put it, to the “enhanced understanding” of unelected justices such as himself.
It started, of course, with abortion. One does not have to be pro-life to recognize that the reasoning of Roe v. Wade was absurd. In fact, in 1992 in Planned Parenthood v. Casey, the court more or less confirmed this recognition when it upheld the outcome of Roe while substituting an entirely new rationale for it.
In that case Justice Kennedy was at first a vote to reject what had been an egregious and unconstitutional power grab. But somewhere along the way he flipped. In the end, he would be the deciding vote in a plurality decision that called on “contending sides of [this] national controversy to end their national division by accepting a common mandate” the court had found for them.
In a withering dissent, Scalia pointed out the toxic effect this approach has had on America’s public life:
“By foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.”
For “anguish,” substitute “culture wars.”
Turned out Justice Kennedy was just getting started. Having reaffirmed a constitutional right to privacy that James Madison and the other Founders had somehow neglected to include in their draft, the court with Justice Kennedy’s assistance would soon unearth another constitutional right unmentioned in the Constitution: dignity.
A more modest justice might have concluded from the 40 years of Roe warfare that the court would be wise to avoid making the same mistake with marriage. Especially at a time when both the states and public opinion were moving in the direction of same-sex marriage anyway. But Justice Kennedy was determined to get there first.
The result was Obergefell v. Hodges (2015), which instituted same-sex marriage in every state. Had this come through state legislatures, the laws would likely have included compromises that would ensure gay Americans would have no obstacles to getting married but those who wished not to be a part of it might have their consciences respected.
Not so in the America Justice Kennedy has ushered in. Now we jail county clerks who don’t want their names on such certificates and ruin people who don’t want their businesses to participate in same-sex weddings. Indeed, the court has just agreed to hear an appeal from a baker who declined to make a cake for a gay couple in Colorado—and Justice Kennedy in all likelihood will once again be the deciding vote.
What makes issues such as abortion and marriage so contentious is that the opposing moral positions cannot be reconciled. The beauty of democratic politics, however, is its recognition that what free people want and what they will settle for as reasonable are two different things. Justice Kennedy’s unfortunate legacy on these hot-button issues is to take compromise off the table and thus ensure anger and ill will.
And why not, when the sides are depicted as the enlightened versus the bigots? Though he walked it back in Obergefell, in which he conceded that many who opposed same-sex marriage were acting from “honorable religious or philosophical premises,” in the 2013 decision overturning the Defense of Marriage Act, Justice Kennedy asserted that the only possible motivation for such a law was a “bare congressional desire to harm a politically unpopular group.”
Anthony Kennedy is an educated man who writes in the smooth tones of Stanford and Harvard Law. The effect, alas, is no less noxious. Next time America’s corrosive politics comes up, it’s worth remembering that the justice so often hailed as a “moderate” or “centrist” has done as much as any to fan the flames of America’s raging culture war. "
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