Our Philosopher-King Retires

Justice Kennedy, America’s philosopher-king, has announced his retirement. The press is fulminating; so are the politicians. The GOP promise to replace him with a nominee to their liking this autumn. The Democrats are shocked and somewhat powerless to do anything except perhaps motivate their voters for November. Indeed, the coming elections, will teach us just how strong the effects of Kennedy on American partisan politics are.

Isn’t it strange that one unelected man should count so much?

Americans live in a culture than no longer retains political modes of dealing with our most divisive questions. From Obamacare to homosexual marriage, from immigration policy to abortion—when we disagree, our parties, our Congress, and even the presidency collapse, to be replaced by Court decisions, usually written by the philosopher-king now retiring.

This brings up questions we almost always prefer to avoid. How can 320 million Americans even live without Justice Kennedy? The millennial quarter of the nation was as yet unborn when Kennedy took his throne with his decision in Planned Parenthood v. Casey in 1992, reaffirming Roe v. Wade and imposing Kennedy’s philosophy on America. On that bright day, he gave us all the “right to define our concept of existence… and the mystery of human life”—but only he and eight other justices got the right to vote on abortion.

After passing politics on to the Court for so long, we must now ask ourselves: How can we make our laws and enforce them? It would make us Founders almost, learning the rudiments of self-government after servitude to a king! We would have to take incalculable risks and try long-forgotten schemes. We’d have to test the purpose and strength of government, as well as our citizenship.

Do we have the parties, Congress, and presidency for such a test? Nowadays, these once-powerful institutions, all subject to election, are reduced to suing each other and hope the unelected King Kennedy—gives them what they want, out of his own free grace. Where they quarrel childishly, he decides with patriarchal authority. He can tell us whether homosexual marriage is legal and whether Christian bakers are forced to bake cakes for homosexual marriages: The rest of us must obey his will! No elected man or woman has been able to disagree with him! What if elections themselves weaken our politicians?

Now, two paths are open to us. The first is perseverance in obedience: America finds another philosopher-king to hold the balance of power, less flamboyant and more lawyerly than Kennedy, but just as keen to rule a 5-4 Court. The likely candidate, Chief Justice John Roberts, is hated by conservative and liberal partisans alike. The conservative who saved Obamacare can never be forgiven by half the nation—nor can the other half really love him.

President Trump can gain support and awe his opponents by giving conservatives another justice they trust with utmost ease. The Chief Justice could respond by moving to the liberal side of the Court and preserving things as they are. But America would have to face two urgent challenges. First, two other liberal justices are 80 and 85 respectively, and may be forced to retire before 2020. Secondly, the 2018 elections will likely strengthen the GOP Senate majority. Balance on the Court depends on Democrats winning the Senate or the liberal justices enjoying good health through January 2021. It’s possible, but it seems strange for a country of institutions to bet its political balance on such chances.

The second path is the likelier in the short term and inevitable in the long term. A balanced Court is impossible, for three reasons. First, the Court has assumed amazing power to decide the questions that divide us. After 45 years, Americans still hate each over Roe v. Wade. The Court keeps deciding political questions on which we fight elections. Thus, the Court is too powerful now for either party to obey without losing its raison d’ȇtre.

Second, divided government, the rule in this generation, forces the branches of government to fight ever more seriously. What’s worse for balance, wave elections keep happening. These, almost unknown to mid-century America, have changed the Congressional majority and presidency twice in eight years and nobody believes they’re over. The wave of 1994, a novelty then, seems to have been a harbinger of coming strife. This must lead the Court itself into political fights. Its putative neutrality compromised, it cannot be an arbiter between the political choices of America’s two voting blocks. Partisanship is more reliable than possession of any branch of government and so the branches of government must fight each other, unless the parties should seriously weaken.

Third, the age of the justices themselves is threatening to destroy the Court’s continuity. They, no more than other men, retire wisely. They serve uniquely long terms, which makes their power that much more necessary to the parties. At the same time, old age makes them vulnerable to chance and prone to losing control of change. Despite pious lies about neutrality, everyone knows justices choose to retire to give their favored party the choice of replacement. This fiction can only be maintained so long—but it cannot be maintained at all by octogenarians, who can no more predict the results of partisan elections than anyone else. Were justices satisfied to retire when their chosen party is in power, things would be otherwise—but they are not.

These three facts will soon cause a political crisis. We have elections this year, in full knowledge that the 2016 elections decided two Supreme Court seats and that two octogenarians are still on the Court. At the same time, the Court keeps deciding political questions involving the president and the policies on which he was elected. And come 2020, the president will be up for reelection with the near-certainty of more seats opening.

Political strife seems likely, therefore, to overcome the old pieties about the Court’s neutrality. We have no reason to suspect political uniformity, one-party rule like that of FDR’s Democrats will return. We suspect, instead, the Court must lose much of its power to decide political questions for Americans, as it comes under sustained political attack in the press and the other branches of the federal government refuse to obey it. I cannot see why the states will not in some cases disobey. Partisanship, precisely because the parties are weak, cannot impose discipline throughout the federal government, much less the states. But it must arouse hatreds that do not easily die, not least because the prospect of victory and the fear of defeat are so much more urgent in an era of divided government.

It is poetic justice that Kennedy should retire just at such a moment: He was the most audacious justice in his generation to impose his philosophy and the Court’s power in American politics. That his legacy should crumble in his lifetime should teach us to be skeptical about many things we have hitherto believed about the relationship between the powers of government and the indisputable character of judicial authority. We must now begin to fear that law itself becomes more political, open to strife, and in need of deliberations we have forgotten how to conduct, if any calm and confidence is to be restored to the public sentiment. Justice Kennedy had no idea what he was really doing. Worse still, because of him we do not know what to do.

We will not learn in comfort or leisure, but in crisis.

Reader Discussion

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on June 29, 2018 at 07:41:42 am

Just so - excellent piece!

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Image of Paul Binotto
Paul Binotto
on June 29, 2018 at 09:25:13 am

Techera's statement as to Justice Kennedy, " That his legacy should crumble in his lifetime..." raises two objections:
1) The legacy to which he objects is not Kennedy's but that of a politicized Court which was bequeathed by FDR. sustained by the borking of Bork, inherited by Kennedy and perpetuated by Clinton and Obama. In numerous cases Kennedy actually undermined the legacy, but on matters of federalism and state police powers affecting republican virtue, he furthered the legacy and in so doing became notorious in American history.
2) The legacy will not "crumble in his lifetime." It is now inextricably part of our constitution, our politics and the public's perception of law and politics. The good that Kennedy did will not be long-remembered; the consequences of his irreparable harm will never die.

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Pukka Luftmensch
on June 29, 2018 at 09:40:52 am

I call Kennedy the erroneous lord of dignity and equality. For example, in the civil marriage opinion, he totally neglected the dignity and equality of progeny---appreciation and lifetime support from his or her mother and father. But the call to civic citizens is broader.

“After passing politics on to [Chapter XI Machiavellianism or the church-state partnership] for so long, we must now ask ourselves: [Will we base] our laws [on the-objective-truth (actual reality)] and enforce them? It would make us [advocates of the 1787 Constitution’s preamble], learning the rudiments of [individual liberty with civic morality] after servitude . . . We would have to [collaborate] and [develop civic integrity]. We'd have to test the purpose and strength of [self-discipline], as well as our citizenship.”

The preamble to the constitution for the USA, a legal statement, offers individuals purpose and goals for civic discipline more than civil governance. Each citizen may adopt the agreement or not. Today, I better mimic Abraham Lincoln in 1863: Gettysburg is hallowed by the sacrifices of willing men so that self-discipline and civic justice of by and for the people may survive.

I encourage each reader to consider the preamble, paraphrase it for 2018 living, and decide whether you want to trust-in and commit-to its civic agreement or not. If yes, offer the changes you’d like to collaborate for, knowing that after collaboration for modern application, the original words will remain. I want integrity rather than Union and to clarify that “posterity” means first children, grandchildren and beyond.

The preamble is both a civic sentence and a legal sentence that is neutral to religion rather than secular. Note that as of June 21, 1788, the USA was established and there remained four free and independent states. When operations began on March 4, 1789, one state had joined the USA, two remained dissident and one remained a rebel.

Major issues were “We the People of the United States” and theism. Religious institutions partnered with political regimes to suppress the legality and power of the preamble, but moreover, most people neglect the preamble’s agreement.

The USA is and always was divided, I think 2/3 wanting a civic culture, and willing people may clarify the situation: civic citizens and dissidents collaborate to develop civic integrity and statutory justice based on actual reality.

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Image of Phil Beaver
Phil Beaver
on June 29, 2018 at 12:05:17 pm

"Isn’t it strange that one unelected man should count so much?"

Consider the instrumentality through which each of the personae, so designated, acts.

Is it "strange" that the instrumentality takes on the status of a "Council of Censors" more than that of adjudicators of obligations in a society that accepts the dispersal of power via "Administration" to replace the dispersal of power over segments of its members (Democracy) ?

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Image of R Richard Schweitzer
R Richard Schweitzer
on June 29, 2018 at 13:57:43 pm

“Isn’t it strange that one unelected man should count so much?”

The fact that one vote on The Supreme Court can serve to amend or uphold The Constitution of The United States of America, is evidence enough, that in "this Republic, for which it stands, One Nation, Under God", and thus "Indivisible, with Liberty and Justice for all", no doubt, The Supreme Court has, at times, denied the spirit and the letter of the Law.

The Supreme Court has the fiduciary duty to uphold both the letter and the spirit of the Law. The United States Constitution should not be amended, it needs to be upheld, as Due Process is binding in both State and Federal Law. Condoning Abortion, Slavery, and Identifying human persons according to sexual desire/inclination/orientation all objectify the human person, and thus by denying the essence of the human person as a beloved son or daughter, are all the result of an error in Substantive and Procedural Due Process Law.

There is absolutely no evidence that any of our Founding Fathers did not believe that a human person can only conceive a human person, or that every son or daughter of a human person can only be a human person. There is no evidence that our Founding Fathers believed human persons have been reordered by God, according to sexual desire/inclination/orientation, which sexually objectifies the human person, in direct violation of God's Commandment regarding lust and the sin of adultery.

Those who claim that the son or daughter residing in their Mother's womb is not a human person, have simply promoted a lie from the start; one can know through both Faith and reason, that it is not possible for a human person to conceive a son or daughter, who is not, in essence, a human person.

It is out of Love and respect for all persons that The Catholic Church has always witnessed to the fact that any act, including any sexual act, that demeans our inherent Dignity as a beloved son or daughter, is not and can never be, an act of Love. There is no animus in authentic Love which always serves out of respect for the inherent Dignity of the human person, Created, from the moment of conception, In The Image And Likeness Of God, equal in Dignity, while being complementary as a beloved son or daughter, Willed by God, The Most Holy And Undivided Blessed Trinity, Worthy of Redemption.

Whenever The Supreme Court has rendered onto Caesar, or The Court, what belngs to God, there you will find an error in both Substantive and Procedural Due Process Law.

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Image of Nancy
on June 29, 2018 at 15:46:06 pm

R. Richard is quite correct.
WE have brought this on ourselves by acquiescing to Rule by Experts, aka The Law of Rules.
What, in the final analysis, is so different between rule by Experts and Rule by Black robed Philosophers.

We have abandoned our republican forms and practices.

In a very real sense, it is WE who have shunned our own *obligations* to actively shape and regulate our governing mechanisms and institutions.

Butchering an old saying:

Yes, the problem is in our Star Legislatures and Judiciary, but look first to the mirror; the problem IS with ourselves.

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Image of gabe
on June 29, 2018 at 16:35:59 pm

Hello, gentlemen. Thanks for the kind words & for the comments. Yes, America as such is the problem. The people has abandoned self-gov't for another kingship. I apologize for the arrogance of pointing to my own essay, but I believe, with all the good objections you're raising--you might find still more substance & nourishment in some of the things I say in this essay: That elections now weaken rather than strengthen politicians, for example. That we have partisanship without parties, discipline, & modes of organizing opinion for deliberation. &c. Another thing, too, how the weakness of our merely mortal bodies humiliates the pride of our politics.

I'd like to add--L&L is one venue for the 'refining & enlarging of public opinion' that we read about in the Federalist. We need more such places & to give them more influence. Digital technology & thinking together are absolutely essential for the recovery of deliberation.

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Titus Techera
on June 29, 2018 at 18:45:25 pm

Dear Titus, while I agree that it was "strange," indeed scandalously strange, that AK found himself in the position of being our philosopher king on quite a few issues, I largely disagree with the overall framing and tone of this piece. Rare, since I agree with you 95% of the time, about the most important things, and often find your opinions shaping mine.

As to the framing of your piece, the "balancing" aspect of AK was largely an accident, but you make it central, not only to his history as Justice, but seemingly to the history of America's political system circa 1991-2018! AK agreed with the living constitutionalist interpretive philosophy with respect to the right to privacy, and with respect to related equal dignity issues. But in other key areas, such as the First Amendment speech and free exercise clauses, and the commerce clause, he did not agree with the typical liberal way of applying the theory. Outside of the now-diminished group who were hoping to establish an American middle of "liberal-tarianism," few regarded him as a good balancer--they just regarded him as way wrong on some issues, and happens-to-be right on others. So while it is shameful and ironic that he became our de facto balancer/decider on many issues, this was a mere side-effect of the larger issue: the fundamental illegitimacy of living constitutionalist doctrine, whether progressivist or libertarian-esque. That doctrine also tended to harm democratic say, and harm motive for legislative branch compromise, and thus led us to a place where, you're right, our skills at ruling ourselves have atrophied. But it was the doctrine that did this, not really AK. Nor was it any need we had for a balancer that did this. After all, the left would have been just perfectly happy had AK gone full proggie.

Befogged by your framing, you slide into saying "Balance on the Court depends on the Democrats winning the Senate or...etc." You thus mislead the reader into thinking that that balance is some kind of good thing, or a "best we can hope for" kind of good thing. No. Living constitutionalist interpretation is poison, is a corrosive agent, whenever and however it is used. Period. So we shouldn't try using it now, however diluted, to keep lefty heads from exploding.

Scalia was right when he said something like "You want MODERATE Judges? I don't even know what that is. You seem to be looking for a quality, political compromise, that is suited to the legislative power, not the judicial power. Those English teachers who still teach grammar never ask their students, 'give me a moderate interpretation of what the subject and the predicate are in this sentence'."

Your framing leads you to propose that the corrupt balance brought by AK is needed for the political stability of our system, but you begin having to make all kinds of questionable claims to support this. Your not admitting or hinting at the questionableness of these claims is what I mean by tone. When you say a) "the Court is now too powerful for either party to obey without losing its raison d'etre," b) that wave elections have increased significantly and are bad bad news, and c) "we suspect that the Court must lose much of its power as it comes under sustained political attack in the press and the other branches of the fed govt refuse to obey it," you are making three highly questionable claims. Even the one that is not predictive, b), is open to all kinds of attack--how do you define wave?--why is the mid-20th-century the gold-standard?--aren't clear-mandate elections more democratic?--etc. You make the reader feel you have great confidence that your political nose senses which way everything uncertain and unprovable about those claims must turn out. This exposes you in your predictions especially. On those, we are led to ask, what does it even look like for a political party, or the leg. or exec branches, to "not obey" SCOTUS? The limited ways of resisting SCOTUS decisions have been laid out in detail by Amer. political scientists. They should be used more often, but they are pretty limited. Short of getting the public so riled up and so on on your side that you can pass a Court-packing or jurisdiction-curtailing law--and if you can get that far you might as well go for an amendment also--there are not a lot of solid options. For example, Roe falls, and Idaho bans nearly all abortions. Just what is it that the Democratic Party, or the Executive or Legislative branches of the U.S. can do to stop Idaho? I.e., to "not obey?" Or at least, what can they do that doesn't come with grave political disadvantages?

My tone would be different--my tone would not say that irrational and fratricidal refusal to obey the other sides' rulings is the obvious drift. First of all, because I don't, and can't, know that. By contrast, I sure do know of practical obstacles to such disobedience. I sure do know there are, and have been, different tendencies at work in our nation, and that American reverence for the Constitution stands to remain a "tough nut to crack." Second of all, because such a tone would be demoralizing. Why, in an area of broad uncertainty, would I err on the side of demoralizing my fellow citizens, and on such central issues?

Rather, what I say is that originalism is the cure, is the good stuff. Living constitutionalism is the bad stuff. It simply is that simple. And so I say good riddance to the absurd "balancing" of AK that just gave us less poison than we might have otherwise got, and bring on the adult democratic fights about how to come to proper consensus about how to let our Constitution develop, aided among other things, by my proposal of a Responsibility Amendment https://www.firstthings.com/blogs/firstthoughts/2013/08/mark-levin-meet-herbert-croly . That's the mid-to-longer term, sure, but the quickly coming Era of Applied Originalism is most likely to be a very good thing in on a whole number of fronts, including its containing a number of hard lessons for our Democrats, as they are forced to return with the rest of us to really looking at our Constitution, and at what's really required to change it.

P.S. I think your worry about the increasing age of the Justices is both old news and a tad exaggerated, but I do hope that Clarence Thomas reads it, as he also ponders the place RBG's ego led her: guilty forever before her leftist kin of not strategically retiring before 2016.

P.P.S. I do think you've overstated the ubiquity and intensity of Roberts-distrust among conservatives.

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Carl Eric Scott
on June 29, 2018 at 19:22:19 pm

"P.P.S. I do think you’ve overstated the ubiquity and intensity of Roberts-distrust among conservatives."

Perhaps, but only moderately so!

Also, I would look to modify both your critique and Titus' thesis.

It is NOT living constitutionalism, per se, but rather the presumption of the Judicial that it is both a) competent and b) empowered to replace the 8deliberative process of what was intended to be the most powerful of the Branches. There is a difference between the two suppositions.

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Image of gabe
on June 29, 2018 at 20:06:30 pm

To the response at 4:35 pm:

While "politicians" may draw strength from, or demonstrate weakness in, elections, their function is **not** to reinforce the conditions of "politicians."

We have been experiencing (but perhaps not closely observing) the "deconstruction" of the organizations of "parties" for political objectives as their "establishments" (actually, the oligarchies that Robert Michells identified) centralized, then fractured or fragmented into failure and collapse - not yet replaced.

So long as the social factors noted by Oakeshott in his "The masses in representative democracy" continue predominant, the idea of 'refining and enlarging of public opinion' may be a romantic (perhaps a "fools") errand; for which one does not have to ascribe to the thinking of Walter Lippmann.

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Image of R Richard Schweitzer
R Richard Schweitzer
on September 25, 2020 at 07:35:46 am

[…] must make the Court obey the Constitution rather than rewrite it. We must above all fight against the liberal arrogance of creating philosopher-kings who attack our rights to property and the rest of our lives, because we now see the catastrophic […]

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