With their decisive votes in Dobbs v. Jackson Women’s Health, Justices Neil Gorsuch and Brett Kavanaugh not only joined the Supreme Court’s conservative majority in overturning the constitutional right to an abortion, they betrayed a central achievement of their mentor, retired conservative Justice Anthony Kennedy. One less visible, yet fundamentally significant, aspect of the ruling is the court’s wholesale rejection of Justice Kennedy’s distinctive approach to protecting individual liberty, which will prove to be a loss for all Americans with far-reaching consequences.
Justice Kennedy, appointed by President Ronald Reagan, led the court in writing more nuanced opinions than may be typical for the Supreme Court, such as Casey v. Planned Parenthood, which upheld a woman’s right to control her own reproductive health, and which Dobbs overturns. In Casey, Justice Kennedy articulated how liberties of choice in personal matters such as marriage and procreation are inexorably connected to a person’s equal standing in society, thereby focusing attention on the effects of government regulation on the personal lives of individuals. In subsequent cases addressing the legal status of same-sex relationships he furthered this distinctive approach to understanding the Constitution’s relevance to contemporary life by recognizing the connection between personal liberty to choose a marital partner and political equality. His goal was to facilitate the freedom of all Americans to create their own personal identities through their constitutionally-protected liberty to make choices about core personal matters. In overturning Casey to also overturn Roe v. Wade, one irony is that his two former clerks—Justices Gorsuch and Kavanaugh—cast deciding votes to join an opinion that abandons their former mentor’s distinctive jurisprudence. By doing so, all Americans may lose the opportunity to gain additional protections for their equal dignity to control personal aspects of their lives—and without the underpinnings of Justice Kennedy’s reasoning, they may lose additional rights they have already gained.
In tone and substance, Justice Kennedy’s majority opinion in Casey, written with Justices David Souter and Sandra Day O’Connor (both appointed by Republican presidents) acknowledged the difficulty of reconciling the constitutional rights of women with countervailing moral issues related to abortion. Although abortion is “fraught with consequences” which afforded the state some measure of control, Justice Kennedy reasoned that a woman’s choice was “central to personal dignity and autonomy” protected by the Constitution, which left individuals with the power to “define the attributes of personhood” central to their own values and identity. As the opinion made, clear “The controlling word in the case before us is “liberty”—and indeed with stylistic emphasis, the first and last words of the opinion are “liberty.” It was not simply a “promise of liberty” to be free from particular kinds of government interference, but to be free to make one’s own self-defining choices about matters intrinsic to personal identity. These included all the choices related to marriage and parenthood, including whether to become a parent at all.
Few matters can be more central to personal identity than freedom to choose one’s own personal and intimate relationships. Building on the reasoning of Casey, Justice Kennedy authored an opinion in Lawrence v. Texas which held that laws criminalizing the sexual conduct of same-sex couples deprived them of their equal “dignity as free persons.” He once again crafted an opinion that started with the word “liberty” and concluded with the phrase “greater freedom.” In between, Justice Kennedy explained how the Constitution protects the liberty of persons to choose their intimate partners free from the state-imposed stigma that criminalizing their private conduct entails. To have the dignity that comes with choosing one’s intimate partners on an equal basis with others, is to empower individuals to define central features of their own personal identities. Perhaps most importantly, Justice Kennedy’s opinion recognized that the boundaries of constitutionally-protected liberty are not fixed, but have what he called “manifold possibilities” that “every generation can invoke” to better articulate the meaning of the Constitution as applicable to their everyday lives.
As a new generation sought the freedom to choose their marital partner on an equal basis with others, Justice Kennedy’s opinion in Obergefell v. Hodges reasoned that “these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” Connecting liberty and equality, Justice Kennedy explained how the freedom to choose one’s marital partner was a way for individuals to achieve equal dignity in society alongside others who were permitted by a state to marry. Justice Kennedy focused on how the Constitution prohibits government from becoming dominant over the kinds of decisions that are central to any individual’s identity as a person. As he succinctly explained, “it is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Unlike anti-regulatory claims to freedom in economic transactions, which receive very little constitutional protection, the liberty at stake in these cases affects not only the private lives of individuals, but also their equal dignity in political society to participate on a par with others.
Taking a step back from the cultural hot-button consequences of these decisions—protecting access to abortion or enabling same-sex marriage—Justice Kennedy’s approach to constitutional law is one many Americans, quick to claim the mantle of liberty, should find attractive. He refused to understand liberty as frozen in time. As he explained in Obergefell, “[R]ights come not from ancient sources alone. They rise, too, from a better-informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” He sought to articulate and protect “freedom in all its dimensions,” which requires going beyond the relatively short-list of liberties the Constitution explicitly mentions. And though he does not rely on the Ninth Amendment, which is the only provision that tells us how we should understand the Constitution, his approach is consistent with it. Simply because liberty is not spelled out in painstaking detail in the Constitution, he refuses to “deny or disparage” the existence of the other rights, and other meanings, not explicitly enumerated.
But denying and disparaging Justice Kennedy’s approach to constitutional law is exactly what conservative Justice Samuel Alito’s Dobbs opinion does. It rejects any attempt to articulate and protect the manifold possibilities for liberty regarding personal matters. It asks instead a quite narrow question: whether the Constitution protects the “right to abortion.” Framed this way, such a question employs the same rhetorical sleight of hand that Tennessee Sen. Marsha Blackburn used in Justice Kentanji Brown Jackson’s confirmation hearings. Where is this “right to abortion” in the Constitution, she and five Supreme Court Justices ask? It’s not there, they claim, so it cannot be a constitutional right. Of course, your right to travel, or not to be forced to get pregnant, or to be free from compulsory sterilization, or not to be limited to having one child, or to choose your profession, or to control your children’s upbringing, or to die with dignity, or to choose your own fashion apparel are not there either—among many other rights you might take for granted—therefore under this reasoning, you have no such constitutional rights either. These and many other similar “liberty rights” are part of the “dimensions of freedom” that the Constitution implicitly protects and that Justice Kennedy’s approach seeks to reveal.
A significant thread running through Justice Kennedy’s opinions—and those of other Justices—is that it is a profound mistake to frame a narrow and specific question of liberty rights and then look to see if the Constitution provides for their explicit protection. When Justice Kennedy’s opinion in Lawrence explicitly overruled a prior decision, which used the same “gotcha” method of asking where in the Constitution is there a right to engage in homosexual sex acts free from state criminalization, he explained how the correct way of understanding the right at stake was to look to the personal choices about intimate partners, the kind of choices that are part of the liberty we all have to form our own personal identities and relationships. This nuance, and concern for the liberty rights of individuals over personal matters ranging from choice of employment to childrearing, is absent from Dobbs.
Using the “gotcha” method, and conducting a pseudo-historical analysis of abortion practices through time to argue that access to abortion is not “deeply rooted” in American legal practice, Justice Alito’s opinion promises to dismantle the Constitution’s dimensions of freedom. That he would seize the moment to undo the Constitution’s protections for liberty that fellow-conservative Justice Kennedy eloquently articulated is no surprise. He was always a dissenter from Justice Kennedy’s opinions. What should come as a surprise, however, is if Justice Kennedy’s two former clerks—at least one of whom, reporting suggested, was chosen in part by President Trump as a nod to Justice Kennedy’s decision to retire—join him in the destruction.
The Dobbs opinion makes no effort to grapple with how the fraught personal decision regarding a woman’s pregnancy might affect the lives of the individuals who make it. Instead, it emphasized the views of 26 states that asked for Roe to be overturned and the political advocacy of millions of Americans who believe that it is morally wrong for others to exercise this liberty. Relying on its backward-looking methodology, the Alito opinion, joined in full by Justices Kavanaugh and Gorsuch, never grapples with Justice Kennedy’s most central reasoning: that some decisions are too personal for the Constitution to allow third parties to decide on their behalf. Justice Kavanaugh does write separately to say that this opinion “does not threaten or cast doubt on those precedents” that also rely on protecting the personal aspects of liberty. No doubt, Dobbs is about abortion access, not anything else. But given the failure to consider or defend Justice Kennedy’s underlying liberty-based reasoning, it is difficult to have confidence that the opinion does not also threaten this approach to constitutional liberty in its entirety. Indeed, Justice Clarence Thomas wrote a concurring opinion urging the court to abandon completely its substantive liberty jurisprudence.
Justice Kavanaugh also separately urged that “I have deep and unyielding respect for the Justices who wrote the Casey plurality opinion. And I respect the Casey plurality’s good-faith effort to locate some middle ground or compromise that could resolve this controversy for America.” But he does not state that he has “unyielding respect” for the Constitution’s protections for the liberty and dignity of persons to shape their personal identities through the choices they make about intimate matters. He may respect his mentor, but Justice Kavanaugh does not say that he respects Justice Kennedy’s understanding of the Constitution on which all Americans have relied. It may be that he does in all other cases but abortion. But neither Justice Kavanaugh nor Justice Gorsuch indicate any such commitment.
More than overturning Casey, Justices Kavanaugh and Gorsuch risk undoing a vibrant approach to constitutional law that is the signature accomplishment of their mentor. This project of better articulating the meaning of personal liberty as applied to concrete social situations is deeply rooted not only in Justice Kennedy’s approach to the Constitution, but also in American history and tradition. Few justices have done more to articulate the significance of liberty in its relation to the dignity of persons in developing their own identities on an equal basis with others than Justice Kennedy. Even if one celebrates Dobbs for giving government a free hand to regulate access to abortion, one might also worry that doing so would come at such a great constitutional loss. If only Justices Gorsuch and Kavanaugh were as committed in the future to their mentor’s distinctive approach to constitutional law in these cases as Justice Barrett proclaimed to be about Justice Antonin Scalia’s approach (“His judicial philosophy is mine too,” she proclaimed about her mentor), we might all live within a better constitutional republic, one that forever seeks to redeem the “promise of liberty.”