Again and again, Kennedy made rulings that aggrandized the power of the Court and of himself as its swing justice. No justice, right or left, was more willing to substitute his judgment for that of elected officials and voters. No justice was less willing to tie himself down to clear rules or a legal philosophy that would constrain him in future cases, let alone rules or a philosophy that bore a plausible relation to the Constitution. We moved toward a system of government no Founder intended, in which his whim determined policy on a vast range of issues.
Some of Kennedy’s critics said that Kennedy had set himself up as our “philosopher king,” but the term suggests a level of sophistication in thought that he did not evidence. The trademark of a Kennedy opinion was a verbal effusion that gestured toward profundity without overcoming confusion. Most notoriously, he used an abortion case to opine 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.” Nobody who ratified the Constitution or its relevant amendments thought in such terms. Nor would any of it be a legal defense against a parking ticket.