Anthony Kennedy Symbolizes Our Struggle To Find Common Ground (The Hill)

Read the full article by Jonathan Turley at TheHill.com

The retirement of Justice Anthony Kennedy has been met with apocalyptic predictions of a new Supreme Court with a Trump-enhanced majority. Within hours of Kennedy’s announcement, CNN legal analyst Jeffrey Toobin described a country where bazookas might be legal, women arrested for back-alley abortions, and gays chased from stores. He even gave a hard date of 18 months for abortion being illegal in at least 20 states.

While remarkably specific in his timeline, Toobin’s dread is shared by many who saw Kennedy as a watchful moderating force on the court — the human shield protecting basic rights from an ideological attack from the right.

Indeed, Kennedy’s departure could well mean the greatest shift on the court since the move from the Warren to the Rehnquist courts. However, too much emphasis has been placed on the loss of the court’s perennial swing vote.

Kennedy was more than a fifth vote on a tally sheet. The real loss is not his vote but his voice. Kennedy was unique in his treatment of individual rights — speaking profoundly about the struggle of all individuals to maintain dignity and identity in this nation. His was a strong but gentle voice at the very center of our most divisive controversies, calling for tolerance of free expression and association. In the internecine battles of the court, he squarely planted in the middle as a constant beacon for liberty interests.

Kennedy’s legacy over 30 years on the court produced some of the most defining cases of our generation.

Kennedy had a clarity and consistency of thought in his opinions. He did not flinch from striking down a federal ban on virtual child pornography or protecting the right to burn the flag as a protest. For Kennedy it was all free speech — not good or bad, just speech. In his decision striking down the Child Pornography Prevention Act in Ashcroft v. Free Speech Coalition, in 2002, Kennedy wrote: “The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought. … The court’s First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct.”

Kennedy transcended partisan expectations to reach across the court’s ideological lines to find commonality with colleagues over concepts like dignity. He stood alone in his unique articulation of a liberty interest in self-expression as opposed to more classic liberal or conservative constructs.

Perhaps the collective panic over his departure reflects our continued insecurity over our continued capacity for self-harm as a free people. However, the key lesson that Justice Kennedy leaves with us is that we are not the sum of our insecurities but, rather, of our ideals. We have the ability to transcend our divisions and find a common value in our identity as a free people. That reassuring voice will continue to reverberate in the cases that Kennedy left over the course of his brilliant career. 

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.