Putting aside for a minute any consideration of his legacy as a Supreme Court justice, it's worth pointing out that one of the principal benefits of Anthony Kennedy's retirement is that it will spare the rest of us the unwelcome chore of having to pay attention to him.
Never in the modern history of our judiciary has there been a prominent figure — with the possible exception of Roy Moore — more obsessed with his role. Even the manner in which Kennedy chose to announce his departure from the federal bench was telling. For months now it has been rumored that he would retire at the end of the high court's now-finished term. The esteemed doctor of the law made a point of writing a batch of opinions even more pompous and digressive than usual, which is saying something. Every journalist in the country waited for the news on Wednesday morning, seemingly in vain. Then in the afternoon he released a statement in which he thanked no one in particular for "having had the privilege to seek in each case how best to know, interpret, and defend the Constitution and the laws that must always conform to its mandates and promises."
What difference did those three or so hours make to the justice? None whatever, except that in an almost meaningless fashion they allowed him to baffle observers one last time.
Any number of attempts have been made to sift through the entrails of his jurisprudence, such as it is, in the hope of some clue or token that would explain his apparent contrarianism. Many people have come to the conclusion that he is a decent but misguided (in one direction or the other, depending on the observer in question) man trying to do good by his own lights. I used to believe myself that he was some kind of galaxy-brained ultra-liberal, a black-robed space Jacobin intent on bringing justice to the furthest reaches of the universe — not justice in the humble sense defined in our Anglophone legal system, but a universalizing, all-encompassing obsession with maximizing the autonomy of individuals and equating any and all subsequently random outcomes with the common good.
This would go a long way toward explaining how it's possible for the same man to argue in favor of a right to abortion, a right to gun ownership, a right not to own health insurance, a right, even, to exclude minorities from institutions of higher learning and for plutocrats to buy elections. It would also help us to make sense of some of his absolute worst opinions, daft prose poems that make Schiller's "Ode to Joy" read like a Congressional Budget Office report on block-granting Medicare by comparison.
But I am not so sure anymore. The same Kennedy who sided against his conservative colleagues in Lawrence v. Texas also voted to uphold Trump's Muslim ban and to deny collective bargaining rights to vast swathes of the American workforce, and was for ObamaCare before he was against it. Considered in themselves, most, if not all, of Kennedy's opinions point towards an idiosyncratic philosophy of liberty. But there is, I think, a simpler explanation: The man believes in nothing.
I can think of few sentences in our language more chillingly nihilistic than the one from Pennsylvania v. Casey in which Kennedy asserts that "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." It's almost impossible to describe just how terrifying a suggestion this is. In a mere 26 words, it would, if it were possible for any sentient adult to take it seriously, reduce ontology, epistemology, ethics, and biology into a matter of taste; it would make a quasi-commercial preference for one thing — the life of an infant, say — as opposed to another. That it has possessed, for nearly my entire life, the absolute force of law in this country seems to me almost unimaginable.
It would be untoward to end an article on the legacy of a man who has spent more than four decades of his life in public service without a hint of gratitude. Being vexed by Kennedy's eccentricity and perversity is one of the few common experiences that has united Americans of virtually every party and creed for many years now. That is, in a sense, a remarkable achievement and, let us pray, perhaps his only lasting one.
