The Chutzpah of Justice Kennedy Lecturing Us About Democracy on June 26

June 26 is a very significant day in Supreme Court history. On, 6/26/2003, Justice Kennedy wrote the majority opinion in Lawrence v. Texas. On 6/26/2013, Justice Kennedy wrote the majority opinion in U.S. v. Windsor. And on 6/26/2015: Justice Kennedy wrote the majority opinion in Obergefell v. Hodges.

The last of these opinions was the most significant. June 26, 2015 fell on a Friday. At the time, it was fairly unusual for the Supreme Court to hand down opinions on a Friday. But wouldn’t you know it, Pride weekend would begin the next day. At the time, David Lat wondered if Joshua Matz, one of Kennedy’s clerks “pointed out to his boss . . . that handing down Obergefell on June 26 would basically turn that day into Justice Anthony M. Kennedy Day for the LGBT community.” And so it came to pass.

It is difficult to think of any decision that had a more harmful effect on democracy than Obergefell. What still galls me about the decision is that public opinion was trending, rapidly, in favor of a right to same-sex marriage. Within only a few years, states that approved of same-sex marriage would have reached a critical mass. In 2013, the 538 Blog offered this forecast for support for same-sex marriage. In the brief period between Windsor and Obergefell, I would share this chart with my students. In hindsight, it seems so quaint.

Alas, this process would never be completed. Chief Justice Roberts stated the issue plainly in one of his greatest dissents:

Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

This windup brings me to remarks that Justice Kennedy made–on all days–June 26, 2025.

“Many in the rest of the world look to the United States to see what democracy is, to see what democracy ought to be,” Kennedy said during an online forum about threats to the rule of law. “If they see a hostile, fractious discourse, if they see a discourse that uses identity politics rather than to talk about issues, democracy is at risk. Freedom is at risk.”

I suspect that Justice Kennedy sees President Trump as a threat to Democracy–a threat heightened because Kennedy chose to retire under Trump. I think back to that moment at the White House where Kennedy wagged his finger at Trump over something, and Trump just walked away. How will Justice Kennedy discuss that incident in his memoir?

Justice Kennedy should look at how his own decisions subverted democracy without even the faintest patina of law.

On this eve of Independence Day, we should not lose sight of the most important freedom–the right of self-governance. Here I quote from Justice Scalia’s Obergefell dissent:

Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges.

I still miss Justice Scalia. No one on the Court can come close to his prose. Alas, as evidenced by Skrmetti, we are still living in Justice Kennedy’s shadow.

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