by Chris R. Morgan


The story is a typical one. Or maybe not so typical. In 1953, a Republican assumes the office of president of the United States after two decades of Democratic dominance. Eight months later, the last president’s chief justice of the Supreme Court suddenly dies after a microscopic seven years on the bench. Though it is not the most fortunate turn of events, the opportunity to make a dent in the life-tenured governmental branch filled almost entirely with Democratic appointees is too monumental to take both lightly and without some glee. The president sees to it that he taps a candidate who “represents the kind of political, economic, and social thinking that I believe we need on the Supreme Court” and “has a national name for integrity, uprightness, and courage.” He finds it in a three-term governor of California, who is in short order confirmed unanimously by the Senate. And not a moment too soon, it seems. A divisive case looms, the Republicans, steeled with confidence in their man, await the exertion of that integrity, uprightness, and courage to hold back the forces that would sow disorder in the Republic. Yet the outcome could not have been more adversarial to such hopes.

The rise of Earl Warren carries no small hint of the occult to it. It is as though he and Richard Nixon happened on a tanned, bikini-clad bevy of weird sisters with alluring but foreboding prophecy, or as though he was visited upon by a pomaded, Thunderbird-riding Mephistopheles wanting to strike a deal. Only in this case it was the country and not the man who was fraught with madness or saddled with supernatural debt. With a few moralizing platitudes, Earl Warren could render sanity mad, courage cowardly, truth erroneous, and magenta crimson. It even left his appointer to declaim Warren as “the biggest damn fool mistake I ever made.” When you leave aside that fact that Warren’s appointment was a purely political bargain to ease tensions he had with Nixon, that his independent streak was no secret seeing as he was nominated by both parties for his second term as governor, that his civil rights decisions did not immediately cure or reverse the ills that they addressed, that judicial activism was not of his making, and that no one can confirm that Eisenhower actually said what he said, it is one of the most enduring myths of modern America.

For a vociferous, if not sizable, subset of Americans, this myth stands as a kind of nationwide teachable moment. Warren is a Promethean figure in need of a rock. From him, all of our current ills emanate, both our social permissiveness and the fact that our presidential elections are now in essence contests for who has better taste in judges. But myths are multifaceted things. One can just as easily see the myth not as accursed but empowering. It has something of the incantatory to it, making purpose appear in someone’s conscience where none was to be found. It is the least popular of the interpretations, but it is the most powerful. Its holder makes it so.

On the surface, Anthony Kennedy’s reverence for Earl Warren is understandable. It would be bizarre if it were otherwise. Kennedy is a scion of California politics. His father was a prominent lawyer and lobbyist, his mother worked for the state Senate. As an awkward teenager, Kennedy worked as a page for the same body, and had crossed paths with the then-governor and his family.  As Jeffrey Rosen tells it, Warren’s example impressed upon Kennedy “the sunny belief in California as the embodiment of the American dream and politics as an opportunity for well-intentioned public servants to set aside their partisan differences and work for the common good.” Following Warren, Kennedy prefers “instincts” to “rigorous legal analysis” when it comes to deciding cases.

Anthony Kennedy is one of the most baffling and infuriating figures in American history. He is, at crucial moments, the most powerful member of our government, constantly serving as the deciding vote on all of the landmark cases before the otherwise polarized Supreme Court, while at the same time being the most basic and mediocre. Much ink has been spilled in teasing out how such an error could have been committed and how such a person could come to be as he so flagrantly and knowingly is.

There are, as I see it, two popular interpretations of Anthony Kennedy’s mindset, each with sufficient evidence that Kennedy himself practically giftwraps for his haters. One is the National Hamlet, the vacillating “brooder,” committing fully and freely to one side of the case before the full weight of the Great American Burden suddenly pushes him to the other side, and for reasons by which even his colleagues are baffled. Rosen again:

His performance in Bush v. Gore was similarly melodramatic. Kennedy initially joined the four liberals who wanted to allow the Florida recount to continue, but, after a brief show of agonizing, he changed his mind. This left Justices Breyer and Souter—who thought they could win Kennedy’s vote—with their hands extended, played for dupes.

Kennedy does have something of an obsession with the play, going so far as to preside over mock trials of its protagonist. And his interpretation of the play is wholly self-serving:

Hamlet is a tremendous piece of literature. You know Hamlet better than you know most real people. Do you know the reason? Because you know what he’s thinking. And this teaches you that every human has an integrity and an autonomy and a spirituality of his own, of her own, and great literature can teach you that.

The other, more public interpretation is Kennedy as the National Father, who uses his power not so much to sort out constitutional conflict as to fretfully tut-tut his perpetually out-of-line children. This is evinced in his fondness for lecturing off-hours on the importance of civic virtue, of courage, integrity, and freedom. Yet it is all the more apparent in his court work. It seems that one way to get Kennedy on one’s side in a case, particularly the hard cases, is to give him dibs on the majority opinion. I cannot see any other reason why his rhetorical stamp is all over the cases involving sodomy, abortion, religious freedom, gay marriage, and the 2000 election. It goes over like hardened syrup on a bottle of Mrs. Butterworth’s, overly sweet and immovably dense. Imagine the nostrums of Jim Anderson or Mike Brady performance-enhanced by a Harvard Law education. His much vaunted gay marriage ruling, for all of its positive results, bares this nauseating hallmark with aplomb:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Yet both interpretations seem insufficient. While the Hamlet-complex bares the mark of annoying melodrama, he is not the first Supreme Court justice to be willfully irresponsible in carrying out his duties, and America’s political history is strewn with finger-wagging would-be Ward Cleavers. Instead there lurks a third interpretation that better assesses Kennedy’s inexplicably strong hold on our nation’s law and morality.

In the wake of the Brown v. Board of Education decision, Warren had gone from a promising high court advocate for law and order to a rightwing pariah. The “WANTED for impeachment” flier, accusing him of “giving aid and comfort to the Communist Party” and for being “a rabid agitator for compulsory racial mongrelization,” among other things, is iconic of this break. This would continue through to his retirement in 1969. Kennedy actually doesn’t have much in common with his mentor. Warren was a glad-handing politician, which fed into his results-oriented approach to judging. He prided himself on persuasion and consensus-building. Kennedy is more the sullen loner with a flair for abstraction and drama. In this sense, Kennedy is less entranced by the results of Warren than he is by the fallout from the results.

Disappointment is an inevitable part of human life. In some ways it is its most defining trait. We spend inordinate levels of energy trying to evade it, yet it takes only one encounter with it—directly or indirectly—to level us. Disappointment unmasks us, it can reframe relationships or it can demolish them, sometimes beyond repair. But this being the Great #Decline, wherein anything can be given to pathology, so too can disappointment. There is a way to relish in it; one can even thrive and build a brand off of it, as Kennedy clearly shows.

Anthony Kennedy’s gluttony for disappointment far outshines his vacillation and lecturing. It’s hard to blame him. It’s practically standard issue for the arsenal of any lover of the dramatic. When it is done on one’s own terms, and with minimal material risk, the fruits of disappointment are bountiful and juicy. Disappointment, the kind we’d run headlong into incoming traffic to avoid, is often linked with personal failure or betrayal, yet seen another way, disappointment can be a happenstance route to self-definition at best, or a cruel mode of rebellion at worst. I contrast this with the desire to surprise, which is overall positive, it is more sincere and not necessarily done for its own sake, and the effect is evenly distributed between surpriser and surprised. There are no losers.

Disappointment as a conscious act is less equitable, it requires a decisive advantage on the one who is disappointing and marked, even lasting, despair on the part of the disappointed. It is a way of negating estimations others have made of us, unsatisfactory for whatever reason. Think of the believer who turns atheist, or the intellectual freethinker who succumbs to despotism. Sometimes we do it because we feel we must, other times we do it because the opportunity is there, if not to self-define then to feel superior. “They admire me, yes, even love me,” the disappointer bemoans in his self-styled darkness. “But no one truly understands me.” This seems particularly true of Justice Kennedy, who lacks any kind of definition of self beyond that it is assured. This is one way to interpret his antics in the Bush v. Gore voting process, or any other instance where he flouted expectations, such as his repeat dips into the waters of international law, or simply evaporating acts of legislation because he doesn’t particularly like them. Exactly whose expectations he is flouting at this point—his colleagues? The public? The media? Conservatives?—is hard to say. Perhaps it doesn’t matter.

One thing Anthony Kennedy never had on his side was destiny. In this sense, he seems to have disappointed himself. The road to his confirmation to the Supreme Court was always paved only a few feet ahead of his steps. He was, in fact, Reagan’s third choice after Robert Bork and Douglas Ginsburg had crapped out. His hearing was smooth and boilerplate, a paragon of inoffensiveness but also unremarkability. It’s telling that Kennedy would arise amidst the unfurling of the Reagan-Meese grand plan to totally remake the federal judiciary. Things were going to go right this time. Ideological bona fides were a must, as was bench experience. No surprises; no mavericks. What is this thespian, this monologist, to do? His sworn duty, his pledge of public service and sober guardianship? Why are you complaining? John Jay barely even showed up. At least I’m present and accounted for. You should be grateful.

Kennedy is not Warren, but the symbiosis is too uncanny. Perhaps, in a way, he is born of Warren’s deeds. He is his madness cracking open, his supernatural debt paying out with interest.