Jamal Greene’s interesting essay deals not with Justice Kennedy’s actual majority opinion in Lawrence v. Texas but with an opinion of Greene’s own imagining. This is not surprising, since Justice Kennedy’s actual opinion reads like a cruel parody of the modern make-it-up-as-you-go-along judicial decision-making that hides behind the euphemism of the “living Constitution.”
In concocting a constitutional right to sodomy, Justice Kennedy reiterates the insipid New Age solipsism that he and four other justices embraced in their 1992 abortion ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey: “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.” Even more ludicrously, Justice Kennedy suggests that the Framers “might have” added a specific sodomy clause to the Constitution if only they, like Justice Kennedy, had “known the components of liberty in its manifold possibilities.” And in overturning the Court’s seventeen-year-old precedent in Bowers v. Hardwick, Justice Kennedy blithely abandons the stare decisis principles that he helped cook up in Planned Parenthood v. Casey as a pretense for not overturning the then nineteen-year-old precedent of Roe v. Wade.
Justice Kennedy fakes out Greene by stating the very narrow proposition that the “present case does not involve” laws against prostitution or same-sex marriage. All that proposition means, literally, is that a challenge to such laws was not before the Court. But Greene, misplacing his trust in Justice Kennedy, misreads it as “all but conced[ing]” that such laws survive the reasoning of his opinion. Greene therefore valiantly searches for the hidden ground that would make Justice Kennedy’s opinion coherent and principled.
I am not predicting that Justice Kennedy will necessarily vote to strike down laws against prostitution or same-sex marriage. I am contending, rather, that his opinion offers no genuine indication (much less any reason) that he wouldn’t. Ditto regarding laws against public nudity. Rather than provide meaningful guidance to legislators or lower courts on these issues, Justice Kennedy’s opinion creates confusion and invites further judicial mischief.
Greene maintains that the “basic conceit” in Justice Kennedy’s opinion is that “a person can himself be an idea” — or, as Greene puts it somewhat less mystically, that “a person may be so bound up with a distinctive set of normative commitments that we can no longer separate them from him.” One problem with this imputed commitment to what Greene terms “metaprivacy” is that I see nothing in Justice Kennedy’s opinion that reflects it. Moreover, I don’t understand how the answer that Greene imagines Justice Kennedy giving to Justice Scalia to distinguish laws against nudism is compatible with Justice Kennedy’s opinion. Why aren’t nudists equally entitled to define the concept of their own existence, of meaning, of the universe, and of the mystery of human life?
Greene asserts that the term “nudist,” unlike “gay,” has no significant “social meaning” beyond the specific conduct that the word describes. Perhaps he’s right, though I confess I find the point obscure. It would seem equally plausible that nudists are merely a weaker and more insular minority, not nearly so well represented (thank God!) among law-school faculties and therefore not so well positioned to generate reams of unreadable law-review articles expressing whatever social meaning lies behind their conduct. Thus, it may simply be that Greene’s construct serves to privilege conduct engaged in by those minorities that are relatively powerful.
What broader application might Greene’s right to metaprivacy have? Greene powerfully contends that the existence of such a right would call into question the line of Supreme Court capital-sentencing cases requiring admission of whatever mitigating evidence the defense wishes to use to show that the defendant does not have a character deserving of the death penalty. But as Justice Scalia explained in Walton v. Arizona, this line of cases is already at war with a concurrent line of Supreme Court cases curtailing discretion in the sentencing of a capital defendant. Yet the bulk of the Court — including the members of the Lawrence majority — has never adequately confronted this conflict. Justices so accepting of this conflict within the capital-sentencing field (because it maximizes their willy-nilly discretion) would not pay serious attention to the conflict between Greene’s right to metaprivacy and unlimited use of mitigating character evidence in capital sentencing.
In short, Greene takes Justice Kennedy’s opinion far more seriously than it deserves. At the same time, though, like most other modern constitutional commentators, he demands far too little of Supreme Court decision-making. Nowhere in his thoughtful essay is there any hint that there might be a right way to determine whether the Constitution actually embodies a right to sodomy or whether it instead leaves that matter to the political processes for protection, regulation, or prohibition. Nowhere is there evident awareness that the Supreme Court’s decision-making cannot properly consist of unfettered moral philosophizing but must instead take account of the Court’s role within a governmental system of separated powers and federalism. And nowhere is there any recognition that the Constitution has a meaning independent from what five justices may at any particular time claim it means — and that the Court acts unconstitutionally when it departs from that meaning. Indeed, Greene’s overconfident assertion that limiting mitigation evidence, “without question, would be unconstitutional,” nicely illustrates the all too common conflation of Supreme Court decisions with the genuine Constitution.
The real “conceit” in Justice Kennedy’s opinion (in the primary sense of that term) is his and his concurring colleagues’ grossly conceited conception of their role as Justices. They are re-asserting in Lawrence the authority to impose on American citizens their own arbitrary “concept[s] of existence, of meaning, of the universe, and of the mystery of human life.” What this meta-nonsense means, in other words, is that these Justices — five of whom are still on the Court — believe that they have the unconstrained discretion to trample American citizens’ right of self-governance when that right is exercised in a manner that they disfavor. Representative democracy operates only at their sufferance. That, not metaprivacy, is the real lesson of Lawrence.
—Edward Whelan, a former law clerk to Justice Antonin Scalia, is president of the Ethics and Public Policy Center in Washington, D.C. He is a leading contributor to National Review Online’s Bench Memos blog on judicial nominations.