Former Supreme Court Justice Anthony Kennedy fears that the nation's highest court is not immune to America's growing political divide, as the language in written opinions grows sharper and more "personal."
Kennedy spoke to CBS about his new memoir, Life, Law & Liberty, which is out Tuesday, the Hill reported.
“I’m actually somewhat concerned about the Court,” Kennedy said in an interview with CBS News published Sunday. “It’s a little bit too personal and confrontational, some of the opinions. I’m hoping that will settle down a little bit.”
Kennedy was nominated to the Supreme Court in 1989 by Republican president Ronald Reagan. Eventually, Kennedy became known as the "swing" justice on what was fairly liberal Supreme Court. He wrote the opinion in Obergefell v. Hodges, which required all 50 states to recognize gay marriage, and also defended the right to abortion in Planned Parenthood v. Casey, which upheld Roe v. Wade.
On the other hand, Kennedy joined the majority in Bush v. Gore, a decision deplored by the left.
The 89-year-old retired during President Trump's first term and was replaced by Justice Brett Kavanaugh, whose confirmation hearings exposed a bitter divide in the country.
Despite sometimes sharp disagreements, the justices typically speak well of each other in public appearances. But Kennedy said there are signs that the court's well-known collegiality is fading.
“Yes, I’m concerned. Democracy presumes an open, rational, thoughtful, decent discussion where you respect the dignity of the person with whom you disagree. And if it doesn’t have that, then democracy as we know it is in danger,” he said.
Despite his role as a "swing" vote, Kennedy did not shy from controversy during his time on the bench.
In Obergefell, Kennedy was accused of replacing sound legal reasoning with flowery poetics, or what the late Justice Antonin Scalia dismissed as the "mystical aphorisms of the fortune cookie." But Kennedy stands by his prose.
“Someone told me it passed the refrigerator test, [which means] if there’s something that’s interesting and well-written, you put it on your refrigerator,” Kennedy told CBS.
While most Americans now accept gay marriage, Obergefell has continued to face criticism from conservatives who regard it as a textbook case of judicial overreach. And Kennedy's whimsical definition of "liberty" in Planned Parenthood v. Casey as the "right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" still attracts scorn in the conservative legal movement.
Since Roe v. Wade was repealed, there has been speculation that Obergefell could be overturned next. A petition is currently before the court do so just that, although it is far from clear that the justices will take that leap.
The Supreme Court's 2024-2025 term ended with a blockbuster opinion authored by Amy Coney Barrett, the new "swing" vote in the eyes of many, in which Barrett mocked liberal colleague Ketanji Brown Jackson for a passionate, legally adventurous dissent.
Barrett ripped Jackson's dissent, which predicted the end of the American Republic, as "extreme" and superficial.
