Justice Anthony Kennedy doesn’t like law. Or, at least, he doesn’t like for people that aren’t him to engage in lawmaking. Kennedy did not simply vote to toss out nearly two-hundred years of established law in order to strike down part of the Affordable Care Act, he wanted to toss out the entirety of Obamacare. He was the driving force behind Citizens United. He’s given sweeping legal immunity to corporations. A 2005 study found that Kennedy was the second most likely justice to strike down acts of Congress — second only to the guy who thinks federal child labor laws are unconstitutional.
So Kennedy is very quick on the draw when he has the opportunity to shape American law more to his liking, an instinct on his part that has generally served America very badly. One rare instance where Kennedy’s has actually been a force of good, however, is gay rights. Kennedy authored two landmark decisions in this space, and is viewed as the most likely fifth vote to strike down the anti-gay Defense of Marriage Act.
Which is why it is a bit concerning to see Kennedy suddenly claiming that he believes in judicial restraint while he is no doubt in the process of reviewing briefs in the marriage equality cases:
U.S. Supreme Court Justice Anthony Kennedy said Wednesday that congressional lawmakers need to maintain the nation’s balance of power by being able to compromise, expressing concerns that the high court is increasingly the venue for deciding politically charged issues such as gay marriage, health care and immigration.
Kennedy, a former Sacramento law school professor, was asked by reporters whether he thought the court was deciding too many issues that can be decided by Congress.
“I think it’s a serious problem. A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say,” Kennedy said. “And I think it’s of tremendous importance for our political system to show the rest of the world — and we have to show ourselves first — that democracy works because we can reach agreement on a principle basis.”
Now, let’s be clear. If Kennedy has now decided that he cares about judicial restraint, than that could be a very good thing. Kennedy’s opinion in Citizens United did terrible damage to our democracy, as did the deciding vote he cast to install George W. Bush in the White House. He expanded abusive companies’ ability to exploit their consumers through forced arbitration and similar practices. He stole away Lilly Ledbetter’s right to equal pay for equal work. And, of course, the pending challenge to the Voting Rights Act presents him with a fantastic opportunity to show that he is now committed to restraint — an opportunity he did not seem likely to seize during oral arguments.
But his recent claim to care about judicial restraint is, at best, entirely inconsistent with his record on the Court. At worst, it is a warning that he’s suddenly decided to restrain himself now that he has a rare opportunity to do good in the world in the marriage equality cases.