Retired US supreme court justice Anthony Kennedy fears “democracy is not guaranteed to survive” as “partisanship is becoming much more prevalent and more bitter” in the legal opinions coming from his former institution, he tells NPR in an upcoming interview.
Strikingly, for the interview set to publish in October, NPR’s Nina Totenberg said she asked Kennedy whether he was still sure the supreme court’s major decisions would remain intact – as he told a small group of journalists that he was when he retired in 2018 during Donald Trump’s first presidency.
NPR reported that Kennedy “demurred”, seven years after that prediction – and three years after the federal abortion rights once granted by the Roe v Wade ruling were eliminated by a supreme court with a conservative supermajority anchored by three Trump appointments.
“We live in an era where reasoned, thoughtful, rational, respectful discourse has been replaced by antagonistic, confrontational conversation,” Kennedy, who was appointed to the supreme court during Ronald Reagan’s presidency, remarked.
“It seems to me the idea of partisanship is becoming much more prevalent and more bitter. And my concern is that the court in its own opinions … has to be asked to moderate and become much more respectful.”
Kennedy, who during three decades on the supreme court bench earned a reputation as a moderately conservative and authored the majority opinion legalizing same-sex marriage, ominously added: “Democracy is not guaranteed to survive.”
Those comments from Kennedy came as he prepared to release a new memoir titled Life, Law & Liberty on 14 October. His statements also arrived as the supreme court was scheduled to begin a nine-month term on 6 October – during which it may weigh in on a request to overturn the 5-4 Obergefell supreme court decision that legalized marriage for same-sex couples nationwide in 2015.
Recently and separately, supreme court justice Clarence Thomas – part of the body’s six-member conservative bloc in place for the second Trump presidency – publicly said he did not believe “any of these cases that have been decided are the gospel”.
Thomas also said he did not feel any obligation to hew to precedent if he found “it doesn’t make any sense” or is “totally stupid”.
Kennedy wrote Obergefell’s majority opinion, finding in part: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family.”
He also wrote: “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy and spirituality. This is true for all persons, whatever their sexual orientation.
“There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.”
In one of the dissenting opinions in the case, late justice Antonin Scalia – coincidentally, a close friend of Thomas – wrote: “I would hide my head in a bag” if he ever sided with an opinion like Kennedy’s.
Kennedy suggested to NPR that he brushed off Scalia’s scathing rhetoric.
But it stung his family, he said, and he also recounted how Scalia ultimately apologized for it shortly before his death in February 2016.
Kennedy also told the outlet that he perceived the strongest argument in favor of legalizing gay marriage across the US to be the fact that many states barred same-sex couples from adoptions so that only one could be the legal parent – depriving the other of the right to make decisions for their child, sign documents for them or in some instances even visit them during hospitalizations.
They in effect could not say they had two parents, something that was “terribly demeaning for the children of gay parents”, as Kennedy put it. Yet he said “hundreds of thousands of children of gay parents” faced that situation.
“That was eye-opening for me,” he told NPR. “And it was very important in influencing me for the result.”
