SAY WHAT?
August 4, 2005

by Joe Sobran

     As Washington pores over the old legal briefs and 
opinions of Judge John Roberts to determine his fitness 
to become a justice of the highest court in the land, 
perhaps we should reconsider the fitness of a few of the 
incumbents. Some of these people are crazy.

     In a 1992 ruling on abortion, Justice Anthony 
Kennedy wrote perhaps the loopiest words ever to issue 
from the Supreme Court of the United States: "At the 
heart of liberty is the right to define one's own concept 
of existence, of meaning, of the universe, and of the 
mystery of human life. Beliefs about these matters could 
not define the attributes of personhood were they formed 
under the compulsion of the state."

     Can you dig it? I'm, like, "Oooo! Deep, man! Real 
deep!" Many of us -- let's be honest -- have made similar 
utterances in our lives, perhaps after a freshman 
philosophy course and too many beers in the wee hours. 
This one seems to reflect the combined influences of 
Oliver Wendell Holmes, Hegel, and Joseph Coors. It makes 
the late Justice Harry Blackmun sound like a model of 
intellectual rigor.

     Let me make it clear what I am not saying. I can 
find no real fault with Justice Kennedy's syntax, 
spelling, or punctuation, except that he may overuse the 
preposition "of." All the words he uses can be found in 
any dictionary, though they have seldom been combined in 
quite this way.

     But what can they possibly mean? Supreme Court 
rulings tend to be pretty abstract, but you can usually 
more or less catch their drift. In the 1857 Dred Scott 
case, Chief Justice Roger Taney made it pretty clear that 
he thought the U.S. Constitution was just for white guys. 
But Justice Kennedy, going to the other extreme, might be 
writing for little green men (or little green entities of 
either sex). What do his words have to do with abortion, 
or anything else? They are so nebulous they indeed seem 
to have been written in outer space. I guess this is what 
can happen when jurisprudence bursts its fetters and 
invades metaphysics.

     Did this sophomoric sunburst bring peals of laughter 
from the other justices? Only from the waggish Justice 
Antonin Scalia, whose earthy opinions never leave you 
wondering where he stands. But Kennedy was joined in this 
singular cogitation by Justices David Souter and Sandra 
Day O'Connor.

     Liberals have been celebrating O'Connor lately as 
the Court's invaluable "swing" vote (meaning she swung 
with the liberals when it really counted). Since she and 
Souter professed to agree with Kennedy, it would be 
interesting to ask them to paraphrase his delphic words 
in plain English. Frankly, I doubt they could do it. I 
suspect they responded to him much as gila monsters 
respond to each other's mating signals, however baffling 
to third parties for whom they aren't intended anyway.

     It takes a gila monster, I suppose, to recognize 
another gila monster's come-hither look. And maybe it 
took other liberals to recognize that Kennedy was 
indicating that he was in favor of legal abortion even 
though the specific words he employed could mean anything 
whatever.

     After all, he was talking about a "right." Maybe 
that was enough. Liberals like to come up with new rights 
-- the right to privacy, the right to choose, the right 
to abortion -- so why not a real whopper of an 
innovation: "the right to define"? It must have seemed 
like a winner.

     Well, but to define what? One's own concept of 
existence, for openers. And of meaning! This gets tricky: 
the right to define one's own concept of meaning? Moving 
right along, this also includes the right to define one's 
own concept of the universe and of the mystery of human 
life. That's what the man said! No wonder Scalia got the 
giggles.

     Anthony Kennedy is still at large. He still likes to 
quote himself, in the apparent conviction that his words 
deserve to be chiseled in marble, and Scalia be damned. A 
couple of years ago he opined that acts of sodomy are 
also protected by the right to define.

     This seems to be a right that has legs -- or, as the 
Court would say, penumbras and emanations of infinite 
breadth. There's no telling where it could end.

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