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Say What?
 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 1857Dred 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.
![[Breaker quote for Say What?: Justice Kennedy's new right]](2005breakers/050804.gif) 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.
Joseph Sobran |
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| Copyright © 2005 by the
Griffin Internet Syndicate, a division of Griffin Communications This column may not be reprinted in print or Internet publications without express permission of Griffin Internet Syndicate 
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