Supreme Court Judge Kennedy bows out just when US is badly in need of some of his ‘dignity’
AS YOU would expect from documents meantto codify lofty ideals, constitutions around the world make repeated reference to “dignity.”
Article 1 of the German Basic Law decrees: “Human dignity shall be inviolable.”
The Polish constitution guarantees “the inherent and inalienable dignity of the person”. South Africa: “Everyone has... the right to have their dignity respected and protected.”
The US constitution, by contrast, has 7,591 words, none of which is “dignity”.
Supreme Court Justice Anthony Kennedy pencilled it in. Not literally: The 230-year-old charter can only be amended as provided for in Article V.
Supreme Court constitutional rulings often have the same effect, however, and Kennedy’s most important ones redefined rights in terms of protecting the “dignity” of some person or group. This was the unifying theme of his jurisprudence, and it determined his impact on the court.
Why is the death penalty unconstitutional for those under 18? “By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons,” Kennedy wrote in Roper v Simmons 13 years ago.
Why did he disappoint conservatives by not overturning Roe v Wade in a key 1992 case? Abortion involved “choices central to personal dignity and autonomy”.
Why did bans on same-sex marriage have to fall? “There is dignity in the bond between two men or two women who seek to marry,” he wrote in Obergefell v Hodges (2015).
This drove his colleague, the late Justice Antonin Scalia, crazy; Scalia thought the justices should parse the text of the constitution as originally intended, not ponder self-esteem. He rained scorn on Kennedy but, for Scalia, mostly in alas dissenting opinions.
Kennedy was more in tune with the times: the perfect justice for a prosperous and settled nation whose citizens increasingly expected government to provide not just “the general welfare,” as the constitution’s preamble promised, but their personal fulfilment.
He grasped that, in modern America, an old concept from defamation and invasion of privacy law – “dignitary harm” – could be imported into constitutional law, and that much or most of the public would approve.
Hedidsointhespiritof his family’s friend from Sacramento, Chief Justice Earl Warren, who struck down “separate but equal” public schools just as Kennedy was about to graduate CK McClatchy High School in 1954; for black students, Warren wrote, it “generates a feeling of inferiority as their status in the community that may affect their hearts and minds in a way unlikely ever to be undone”.
Scalia had a point, however. “Dignity” is intangible, not a measurable standard. Liberals cheered Kennedy’s invocation of dignity on gay rights or the death penalty; they lamented his 1999 ruling that state employees could not sue Maine in a state court for violating federal labour standards because the constitution protected states against such an “indignity”.
The Kennedyesque phrase “the equal dignity owed to each voter” showed up in the court’s unsigned 2000 opinion rationalising a halt to the Florida recount and awarding George W Bush the presidency. to
Kennedy voted to exempt the closely held Hobby Lobby corporation from a contraceptive insurance mandate under Obamacare because its owners’ right to the free exercise of their Christian religion was “essential in preserving their own dignity”.
Anyone who observed Kennedy at oral argument or heard him lecture knew that this concern with dignity flowed from somewhere deep inside.
You had to admire how doggedly he tried to constitutionalise respect, despite Scalia’s taunts and the difficulties of the task.
In his final term, he came up against a case that illustrated just how difficult. Confronted with a cake decorator whose religious beliefs precluded serving a gay wedding, Kennedy found himself unable to settle the impasse.
At issue were claims of dignity rights that Kennedy had strongly endorsed in separate contexts, but which were mutually exclusive when pitted against each other in the same case. His past rulings offered no good criteria by which to break the tie.
He wrote an opinion backing the cake decorator, essentially because the bureaucracy had not ordered him to serve the gay couple sufficiently respectfully. He left open what should happen when, inevitably, the court confronts a different iteration of the same issue.
That is, he spent 30 years on the court asking government to treat citizens with dignity, and citizens to respect one another, yet even he could not quite identify a certain template for doing so – just when we really need one.
And then he retired.