Justice Anthony Kennedy’s judicial record will go down in history not as the jurisprudence of dignity but rather as the jurisprudence of whim. The suspenseful unpredictability that made him so intriguing to journalism was exactly why he was unsuitable for the bench. He was, as Titus Techera aptly puts it, America’s philosopher-king.
But as conservatives consider his replacement, it would be well to recall that the problem with Kennedy was not merely the nature of his philosophy but also the fact of his kingship. The royalty conferred by judicial robes—which is antithetical to such values as self-government, moderation and accountability—is wholly unconservative, and it is not confined to Kennedy. Substantial forces on the legal right embrace the royalty even as they object to Kennedy’s philosophy: Recalling Tocqueville’s admonition that “[d]emocratic peoples often hate the agents of the central power; but they always love this power itself,” theorists of judicial engagement such as Randy Barnett and Roger Pilon might prefer that judicial authority be exercised differently, but they embrace the authority itself.
There is consensus that Kennedy’s swing vote should give way to a conservative one. That is well and good, but it does not answer the question of what a conservative judge is, or, better put, what a conservative judge does. Genuine judicial conservatism would beware of outcome-based jurisprudence and instead hew to a philosophy that rejects judicial kingship altogether. Rather than relying solely on judges to limit their own power, judicial conservatism would subject them to the normal mechanisms of the separation of powers, according to which branch limits branch.
To see why, one need look no further than the precedent many originalists are most eager for Kennedy’s successor to undo: Roe v. Wade. It is worth asking precisely what made Roe judicially unconservative. The answer is not the prevalence of abortion, which is a vital question of political conservatism, but rather the mechanism by which it was achieved.
Roe terminated processes of self-government that were, not incidentally, liberalizing abortion laws. More important, it encouraged a rush to mutual extremes: a pro-choice movement that would permit abortion always and everywhere and a pro-life counterpart that would ban it altogether. Roe licensed these legislative extremes by stringing up a safety net beneath them. Judges would decide what abortion laws were acceptable, so legislators could posture at will.
There was neither kingly permission nor, importantly, political need for the kind of compromise and moderation that could, in the absence of judicial interference, have resolved the issue so it would not distort and convulse American politics. Mary Ann Glendon, whose pro-life credentials are impeccable, has noted that abortion laws in countries like France, which is hardly a hotbed of sexual repression, permit it early in gestation with a cascading degree of restrictions matched by child care and other supports for parents and children.
That is not to say there are not differing opinions on abortion in Europe or that they are not intense. But they do not determine political affiliation because, in the absence of judicial superintendence, the natural intensity of the issue has been alleviated by moderation and compromise. By contrast, the rigidity of American abortion politics—in which increasingly all Democrats are pro-choice, all Republicans are pro-life, and both feel so intensely about the issue that they affiliate based on it regardless of their differences on taxes, defense, social welfare or other issues—undermines Federalist 10’s assumption that majorities and minorities in American politics would shift based on the issue under consideration.
Indeed, the legislators so eager for the overturning of Roe may find their lives more difficult without its training wheels. Their decisions will have consequences they do not suffer today. Legislators will have to legislate and be accountable for it. Pro-choice and pro-life activists will similarly be pushed toward each other rather than toward the unaccountable extremes.
Its undermining of self-government and not merely its particular policy consequences is what makes Roe unconservative. It disallowed republicanism and consequently licensed legislative extremism without extracting a price in accountability. A conservative judge will be less interested in policy outcomes than in allocating space to self-government and allowing—indeed, compelling—legislators to be responsible for themselves rather than turning to the bench for relief.
In the age of Robert Bork’s first martyrdom—which is to say he was martyred once by the Senate and again by libertarians who now excoriate him—conservatives held this modest view of the judicial role. But the libertarian turn in judicial philosophy welcomes the kingly power of judges even as it hopes for different outcomes. The emphasis there should be placed on “hopes,” for that is all the libertarian turn can do. Judges are not exempt from the normal human temptation to abuse power that has historically concerned conservatives, so to make them kings on the assumption they will properly exercise their royal authority is a bad bargain.
Regardless of the apparent short-term benefits, replacing a capricious judge like Kennedy with one who is equally focused on political outcomes but who happens, allegedly, to favor more conservative ones is equally destructive. A truly conservative replacement for Kennedy will be an originalist by virtue of maintaining the standard of The Federalist—the best guide to original public meaning—which is that judges should only void laws that are at “irreconcilable variance” with the Constitution. That suggests a duty of judges to attempt a reconciliation by reading statutes charitably.
Other conservative values ensue from such a duty, accountability and moderation foremost among them. Genuine self-government entails both. Judicial kingship, by contrast—whether liberal, libertarian or, as in Kennedy’s case, capricious—tends inherently toward outcome-based jurisprudence because it tempts judges, especially the vaunted “swing” judge, with the power of a vote in conference to impose policies on the nation.
Americans have been disconcertingly eager to allow judges to relieve the people of what Tocqueville called “the trouble to think and the difficulty of living.” Judicial kingship is, in this sense, a warped respite from responsibility: The justices will tell us what is right, so we need not concern ourselves with difficult questions. Such lassitude is utterly antithetical to conservatism, which assumes the people, through their elected representatives, will not only desire self-government but engage in the actual work of it.
Those so engaged, without the supervision of judicial masters, will be forced toward moderation. They will be drawn from their natural isolation into the political realm, nobly understood. The legacy of Justice Kennedy has been to unburden Americans and their legislators of such troubles. A truly conservative successor will insist that they take up the work of citizenship once more.