For many, the view of power comes when looking at a white house situated at 1600 Pennsylvania Avenue. The position of President of the United States often comes with the tagline, the most powerful position in the world, thus making the person who holds that position the most powerful person in the world. However, talk to a number of insiders (Washington D.C. not Hollywood) and you’ll learn that many people look up the street for a man with that kind of power – to the Supreme Court – and that man just retired.
Nominated in November of 1987, Anthony Kennedy became Justice Anthony Kennedy on February 18, 1988. He was the third nomination from Ronald Reagan in what was a contentious and divisive time. Politically identified as a conservative and religiously identified as a Catholic, many had expectations about the new outlook of the Supreme Court. Yet, Justice Kennedy confounded both supporters and detractors with his ability to be unpredictable. It was that unpredictability though, that made him a very powerful man.
The Position of Power
The Authoritative Court
In 2015, the Supreme Court found itself at the center of defining the same-sex marriage for the United States. The line of questioning from the justices revealed that they saw themselves as the final authority on the issue. Asa constitutional republic, this thinking is contrary to the societal regulations established at the country’s initiation by the balance of powers. Unfortunately, few challenge the concept that the Supreme Court is the final authority. Once a ruling has been made it becomes permanent with no additional checks or questions about it (1).
For Justice Anthony Kennedy, this aspect of our current political system is important for the placement of power in his hand. By his appointment, he became one of the nine people who are viewed as the final authority in the United States. Thus, immediately singling him out as one of the few.
The Authoritative Swing
It was not only his appointment to the highest court that brought such authority into the hands of Justice Kennedy. Other events, both before and after his appointment had to have transpired, namely the appointment of other justices and the political affiliation of the President and Congress at the time of those appointments. The right set of circumstances brought about a court that apart from Justice Kennedy was evenly split between conservative and progressive values. With his propensity to side with conservatives on some issues and liberals in others, he became a swing vote to be courted by all parties. With most justices already declared, this ability to swing from one side to the other meant that many of the cases came down to his decision (3).
The Authoritative Absolutist
The circumstances that gave ultimate power to the United States Supreme Court, combined with the functional setup of the court meant that Justice Anthony Kennedy found himself in a very unique position: one of ultimate authority. This does not mean that he intentionally sought out this position or even tried to influence circumstances to give himself that power. He appears to be a man of humility that did not seek out this position but was found by it. Therefore, what we see is how a unique set of circumstances gave him that opportunity.
Justice Kennedy did not save liberals, nor did he save the conservatives. He was his own man. As a result, it was Justice Anthony Kennedy who decided the United States’ status on abortion (when the opportunity to overturn Roe v. Wade came to the court) and it was Justice Anthony Kennedy who established the United States’ position about same-sex marriage (most notably in Obergerfell v. Hodges). Two controversial matters that have shaped the history of the United States were directly impacted by what this one man decided to do.
The Position of the Future
Recognizing the influence this one man has, the announcement of his retirement raised the importance of upcoming mid-term elections and causing an influx of cash on the side of the Democrats. The key point is that many people consider themselves to have a vested interest in who his replacement will be. CNN finds itself concerned about what this may mean for the LGBTQ community, while the USA Today opined that open-mindedness would be a virtue that goes by the wayside. For Time Magazine and The Washington Post, the alarm was raised for the advocates of climate change. The stakes are high for many.
Constitutional Interpretation: With progressivism comes a new era of interpretation of the United States Constitution. Much like there are varying ways to interpret the Bible, there are varying ways now to interpret the historical documents of this nation. I would contend that this precedent of new interpretation was made especially possible by Justice William O. Douglas in Griswold v. Connecticut (1965). While some desire a strict constructionist interpretation, which is what President Ronald Reagan anticipated when he nominated Anthony Kennedy to the Supreme Court, others desire a ‘living’ interpretation (4).
Conservatism v. Liberalism: This is politics, despite what people say. The fact that the positions and decisions of justices before even hearing the facts of the case is already known makes this clear. Despite the voice of some independents, what it comes down to essentially for many is “will the appointment of a new justice draw the court down a conservative path or a liberal one?”
Moral Trajectory: Finally, the position of the new justice will determine the moral trajectory of our nation. While the court should not be defining morality, but only enforcing it, history shows that their power goes beyond that. What the court says goes and the people must follow, and so the moral trajectory of our nation for the upcoming years will be defined by this new justice.
This is why people are scared. What they believe and the legality of it may be at stake.
While many are focused on the decisions that came from the Supreme Court in the past two weeks, do not let those decisions overshadow the importance of Justice Anthony Kennedy’s announcement. But neither should a person be scared about the impact of that announcement, something I’ll address on Monday after you’ve had time to contemplate on the significance of these recent events.
(1) I have lamented some of this authority previously and you can read that in the following articles:
(4) In The Briefing (June 28, 2018) R. Albert Mohler explains this concept very clearly. You can read the transcript or listen to the audio by clicking here.
Photo “On the Hill” courtesy of user Eric B. Walker and Flickr.