Catholic Values, Human Dignity, and the Moral Law in the United States Supreme Court: Justice Anthony Kennedy's Approach to the Constitution

Article excerpt

I. INTRODUCTION

The jurisprudence of Justice Anthony Kennedy has baffled legal scholars and political scientists from the beginning of his membership on the United States Supreme Court. Originally hailed as "a true conservative" by the President who nominated him to replace Justice Lewis Powell, (1) Kennedy almost immediately parted ways with his fellow conservative justices on a variety of contested issues related to individual liberty and human dignity. (2) Some of his most controversial opinions have covered subjects such as abortion, (3) and the separation of church and state, (4) but he has truly distinguished himself on the question of free speech where he, of all the current Justices, has most consistently voted to protect this individual liberty. (5)

Over twenty-four years have passed since he took his Supreme Court seat, (6) and during this time, Kennedy has had a number of labels applied to him as commentators attempted to explain his seemingly inscrutable voting pattern. (7) He has been called "rudderless and unpredictable," (8) and a "[s]phinx" (9) who "trims his jurisprudential sails to what he perceives to be the prevailing political winds." (10)

But most of these commentators who have evaluated Kennedy, even those analyzing his opinions for legal doctrine, have cast his jurisprudence in almost strictly political terms, overlooking the fact that each person is a complex figure, and that very few of us can be explained as merely political creatures. (11) One aspect of Kennedy, which has been insufficiently discussed, is his Roman Catholic faith and the influence that the teachings of the Catholic Church have had on his jurisprudence. (12)

This paper approaches Kennedy as a person of faith and looks at the effect this faith has inevitably had on his legal philosophy and on his court decisions, especially when they touch on matters pertaining to personal rights and human dignity. It first gives an overview of Kennedy's background prior to his joining the Supreme Court, and briefly summarizes his comments regarding his philosophy of constitutional interpretation. (13) It then discusses his view of the proper role for government in light of the Establishment Clause of the First Amendment, and goes on to look at the high value Kennedy places on the preservation and legal protection of human dignity, comparing his positions on each of these subjects with the official tenets of the Catholic Church, and noting that his broad interpretation of free speech rights is simply the logical outworking of his more fundamental, faith-based positions. (14) This piece concludes with observations on the ways that the apparent inconsistencies of Kennedy's positions on several issues may in fact be understood as expressions of personal conviction rather than as an adherence to any inexplicable or complex political affiliations. (15)

II. HISTORY OF A JUSTICE

Anthony McLeod Kennedy was born and raised in Sacramento, California, (16) and his upbringing there gave him an "approach to life [that] suggests a small-town innocence." (17) Following his undergraduate career, during which he earned a degree from Stanford, and a B.A. from the London School of Economics, Kennedy attended Harvard Law School. (18) After passing the bar, he returned to California and ultimately took over his father's law practice in Sacramento. (19) His father, Anthony J. Kennedy, was a well-established lawyer and lobbyist with a number of business connections, and the contacts and experience the young Kennedy gained there when he assumed his father's responsibilities helped to further his own legal career. (20) In 1965, while he was still working in private practice, Kennedy also took a position teaching Constitutional Law at the McGeorge School of Law of the University of the Pacific, a job he held until he took his seat on the United States Supreme Court in 1988. (21)

In 1973, Kennedy was recruited to work with then-Governor Ronald Reagan to draft a state constitutional amendment that would cut both taxes and spending in the State of California. …