KENNEDY AND CARHART II. Jeffrey Rosen's assessment of Anthony Kennedy is, for the most part, good and very much worth reading. First of all, he collects some priceless anecdotes detailing Kennedy's legendary intellectual vanity. My personal favorite:
Kennedy moderated a discussion about American values after September 11 at a public high school in Washington, D.C. Sporting a natty gray suit and a pocket handkerchief, Kennedy asked the students which books and movies they would choose to educate the citizens of an imaginary nation called Quest about American values. As the students struggled to get a word in edgewise during the discussion, which was broadcast on C-SPAN, Kennedy kept answering his own questions and returning to his favorite themes. When one student timidly suggested a Dr. Seuss book called The Sneetches that "talks about racial acceptance," Kennedy gravely replied that "Dr. Seuss actually wrote in two different periods, kind of like Picasso. The first period was One Fish Two Fish Redfish Bluefish, but then he wrote about ethical themes, and it's very important for young people to have ethical themes, like Yertle the Turtle." This launched him into an extended riff about how the men and women of Quest, represented by two characters called M and W, should be asked to read Hamlet..
More substantively, Rosen also argues convincingly, based on recent political science data, that Kennedy is both more conservative and has a more consistent jurisprudence than is generally assumed. Although he seems more moderate than he is because 1) he's less doctrinaire than Scalia or Alito, and 2) the current Court doesn't have a liberal in the Douglas/Marshall/Brennan mode, a Court with Kennedy as the median vote will be significantly more conservative than the Court that had O'Connor as the median vote.
Not surprisingly, however, I continue to be somewhat puzzled by Rosen's take on Carhart II. Part of this has to do with questions about "minimalism," which I'll leave to another post. Like his colleague Benjamin Wittes, Rosen doesn't like Kennedy's opinion, agrees with the outcome of the case, but doesn't explain what the Court should have said. But as I've said before, Kennedy's sexism wasn't gratuitous; it provided the crucial link to a legitimate state interest necessary under Casey. Given that the ban doesn't actually protect fetal life or otherwise protect a woman's health, Kennedy had little choice.
In addition, I think it's worth pointing out that while Kennedy's discussion of the underlying principles of this legislation may have been impolitic, it certainly wasn't inaccurate. As Ginsburg noted in dissent, the idea that obtaining abortions is contrary to a woman's fundamental nature and hence bad for her long-term health wasn't invented by Kennedy; it's a well-worn shibboleth of the lobby that got the bills passed. Obviously, this is something of an embarrassment for the pro-choice anti-Roe position, as its adherents (including Rosen) generally insist that abortion bans be evaluated as having the sole purpose of protecting fetal life (despite the fact that this is generally inconsistent with the way such statutes are written and enforced.) If anything good has resulted from Kennedy's otherwise disastrous opinion, it's that getting the truth in the U.S. Reports makes obfuscating the extent to which abortion regulations involve reactionary conceptions of gender and sexuality less tenable.
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