At the funeral of Antonin Scalia, the late American Supreme Court justice, I found myself situated in the sanctuary such that Justice Anthony Kennedy was in my direct line of sight for the entire Mass. I went to pray for and honour one of the great Catholic public figures of his generation, and found myself face to face, as it were, with a far more influential, alas, Catholic public figure in Justice Kennedy. For as between Scalia and Kennedy was one of the great divisions in law and public policy in our time: the division between democrats and dictators.
In the outsized role that the Supreme Court plays in American public life – a role bitterly lamented by the late justice – Scalia was considered a reliable conservative vote, while Kennedy was the swing vote, making him the single most powerful man in America, alone deciding national questions of vast importance.
That was not quite right. Scalia’s jurisprudence deferred to democracy as much as possible, leaving to the people those matters not strictly decided by the constitution. Kennedy, on the other hand, read the constitution – particularly on disputed cultural questions – as a broad endorsement of a liberal way of life,
arrogating to five justices the role of working out the particulars of how that liberal way of life was to be lived by some 300 million people. Between Scalia and Kennedy was indeed the difference between a democrat and a dictator.
Kennedy, by all accounts moderate and genial, does not fit the typical mould of a dictator, clad in a simple judicial robe, no jackboots nor gold epaulets. Yet in recent years in my public presentations I have been styling him the embodiment of modern dictatorship, the totalitarian impulse that Cardinal Joseph Ratzinger, on the eve of his election as pope, called the “dictatorship of relativism”. “Today, having a clear faith based on the Creed of the Church is often labelled as fundamentalism,” Cardinal Ratzinger preached on the eve of the 2005 conclave.
“Whereas relativism, that is, letting oneself be “tossed here and there, carried about by every wind of doctrine” (Eph 4:14), seems the only attitude that can cope with modern times. We are building a dictatorship of relativism that does not recognise anything as definitive and whose ultimate goal consists solely of one’s own ego and desires.”
Scalia argued passionately that one’s ego and desires cannot be conflated with constitutional rights to be guaranteed by law. Kennedy’s jurisprudence holds that one’s ego and desires lay at the heart of the constitution itself. In 1992, in the Casey opinion which confirmed America’s unlimited abortion licence, Kennedy wrote 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”. Much mocked by Scalia as the “sweet mystery of life passage”, which meant nothing but could justify anything the court wished to authorise, that innovation in constitutional jurisprudence greased the skids for a 23-year slide through social liberalism.
For the gay marriage decision last year, Kennedy updated the Casey endorsement of metaphysical relativism and hitched it to identity politics, beginning his majority opinion by declaring that “the constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” About that opening, Scalia wrote in his dissent that had he signed such a statement he would put a bag over his head. Kennedy, for the record, appeared at the funeral with grieving head held high, uncovered by any bag.
The relativism expounded by Kennedy, namely that liberty means the right to “define” the universe and “define and express identity”, provides no standards for adjudicating either law or behaviour. The only standard is whatever is settled upon by those in power – hence the declaration that all those who disagree with Kennedy et al are somehow unfit for public life. “These apparent assaults on the character of fair-minded people will have an effect, in society and in court,” countered Chief Justice John Roberts. “Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s ‘better informed understanding’ as bigoted.”
In 1978, when the newly elected John Paul exhorted nations to “open wide the doors to Christ”, there was no doubt he was speaking to the communist powers. When the soon-to-be elected Benedict spoke of the “dictatorship of relativism” it was not as immediately clear who it was he was speaking about. It was, in fact, Anthony Kennedy, present in the front pew, mourning his friend and colleague, Justice Scalia.
Fr Raymond J de Souza is a priest of the Archdiocese of Kingston, Ontario, and editor-in-chief of Convivium magazine
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