What Anthony Kennedy Didn’t Do Today

I’m working my way through Windsor , and I must say, Anthony Kennedy has never been worse—sophistry, casual matter-of-fact demonization, unclear basis for the decision, vague and repetitive phrasing, and a nauseating pretense of caring oh-so-much about how our federalist tradition assigns the regulation of marriage to the states.

Even if you disagreed with it, his Lawrence decision had two or three passages where key principles and arguments were well-phrased. Moments that felt like an intellectual break-through, or a clear-enough posing of the alternatives. Even the much-mocked (and deservedly so)”mystery passage” of Casey at least had a striking character to it.

I’m seeing none of that in this opinion—the argument sections feel rote, perfunctory, and shrill when not tediously wordy. Kennedy’s only interesting when outside the actual argument, describing the facts of the case, or giving us tidbits like the fact that 13-year-olds can marry in New Hampshire but not Vermont.  Worst of all, his argument seems to be mashing (substantive) due process liberty and equal protection into one amorphous thing, so that the most distinctive A. Kennedy contribution to our jurisprudence, his “true logic of liberty” theory, just bleeds away into this mush.

And I can tell this opinion will be misery to try to use for teaching purposes. That’s not just a professor’s complaint—a major opinion like this is charged with the responsibility of persuading and educating the citizenry. I’ll say more later, I expect . . .