Justice Anthony Kennedy is right
February 4, 2016 § 31 Comments
Supreme Court Justice Anthony Kennedy famously wrote, in his opinion on Planned Parenthood vs Casey:
At the heart of [political] liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.
This statement is correct.
I have explained in many different ways how and why liberalism simultaneously
- Is rationally incoherent, and therefore logically implies everything and its opposite all at once; but in a way which is not immediately transparent.
- Affirms individuals in their expectations and exalts what individuals happen to desire or will over reality: cafeteria realism.
One of the interesting functions of the Supreme Court in the American political system is that it gives conservatives a strange attractor for hope and blame: a political sink to absorb their resentments, hopes, and fears while stopping short of repudiating liberalism. Authentic political freedom and republican democracy would work if only those tyrants in the Supreme Court would stop legislating from the bench. Certainly (goes the argument) it is unfair to blame democracy and liberalism – authentic classical liberalism – for the tyrannies of the Court.
The Supreme Court keeps everyone on the reservation by playing the roles of referee and tyrant. Part of the problem with populism is that sometimes people decide that liberalism isn’t what they really want: subsidiary authorities and electoral majorities will sometimes violate liberal principles if someone doesn’t keep the electorate and subordinate government bodies in line. So social conservatives end up simultaneously excoriating the Court and hoping to gain control of it, so that their truly authentic vision of freedom and equal rights can be achieved.
Meanwhile, even when the judges are appointed by conservatives – Anthony Kennedy was appointed by Ronald Reagan – those judges inevitably find (shocking, I know) that liberal principles imply substantively liberal outcomes for disputes in law.
When Kurt Gödel was applying for US citizenship he almost got his citizenship denied, because he would argue that theoretically the US could vote itself in a king or strongman dictator. His friend Albert Einstein calmed him down and reassured him that this theoretical possibility was not really a practical possibility: whatever the formal structures may theoretically allow, the United States was incorrigibly committed to freedom and equality as bedrock political principles.
I’ll just suggest that conservatives who think that liberal democracy could work out great, if only it weren’t for the tyrannical Supreme Court, are no Einsteins.