The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Land of the Free Because Of The Brave
"The brave Justices who once sat on this Court decisively rejected those claims."
For three decades, Anthony Kennedy was America's moral arbiter. He alone got to decide what was legal and what was illegal. Abortion, sodomy, gay marriage, and so on. In Dobbs, the dissenters waxed nostalgia about Justice Kennedy, along with Justices O'Connor and Souter, as "judges of wisdom."
In 303 Creative, Justice Sotomayor's dissent expressed a similar yearning for the Hercules's of the day.
Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities. New forms of inclusion have been met with reactionary exclusion. This is heartbreaking. Sadly, it is also familiar. When the civil rights and women's rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims. Now the Court faces a similar test.
No doubt, the "brave Justices" include Justice Kennedy, who single-handedly rewrote the law concerning gays and lesbians in America: Romer, Lawrence, Windsor, and Obergefell. In hindsight, Obergefell may seem like a foregone conclusion, but the three-decade trip from Bowers to Obergefell was anything but certain.
Still, I am not sure that the assignment of bravery is correct. Justice Kennedy was always extolled in elite circles for his progressive jurisprudence, while Justice Scalia and the dissenters were lambasted as bigots. Those dynamics were true a decade ago, but are even more stark now. Indeed, I think the bravest act is to rule against the sentiments of elite opinion. The six members of the majority did so with fearlessness.
