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June 28 2017

How the Supreme Court Has Inflamed America’s Culture Wars

by Rachel DiCarlo Currie

Everyone agrees that America’s political and cultural debates have become viciously polarized, and everyone has an explanation for how that happened. No explanation is complete unless it mentions the prominent role played by unelected judges in general and the Supreme Court in particular.

For decades now, the judiciary has been declaring that certain hot-button social issues fall outside the boundaries of democratic politics. Indeed, rather than allow the people and their elected representatives to reach some type of compromise on, say, abortion or same-sex marriage, the Supreme Court has chosen to make policy by judicial fiat.

As a result, the “losers” in America’s culture wars — millions and millions of people across the country — feel they’ve been disenfranchised. Quite understandably, they question the legitimacy of court rulings that have no real basis in the text or history of the U.S. Constitution or American law.

Alas, the Supreme Court’s current “swing justice,” Anthony Kennedy, has contributed to this erosion of democratic government. Whether Justice Kennedy announces his retirement this year, or next year, or four years from now, cases such as 1992’s Planned Parenthood v. Casey, in which the Court reaffirmed its “central holding” in Roe v. Wade, and 2015’s Obergefell v. Hodges, in which the Court legalized same-sex marriage nationwide, will be a significant part of his legacy. (Kennedy wrote the majority opinion in Obergefell and co-authored the plurality opinion in Casey.)

Examining that legacy, Wall Street Journal columnist William McGurn explains how Kennedy has exacerbated America’s political and cultural divisions:

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What makes issues such as abortion and marriage so contentious is that the opposing moral positions cannot be reconciled. The beauty of democratic politics, however, is its recognition that what free people want and what they will settle for as reasonable are two different things. Justice Kennedy’s unfortunate legacy on these hot-button issues is to take compromise off the table and thus ensure anger and ill will.
 

And why not, when the sides are depicted as the enlightened versus the bigots? Though he walked it back in Obergefell, in which he conceded that many who opposed same-sex marriage were acting from “honorable religious or philosophical premises,” in the 2013 decision overturning the Defense of Marriage Act, Justice Kennedy asserted that the only possible motivation for such a law was a “bare congressional desire to harm a politically unpopular group.”


Anthony Kennedy is an educated man who writes in the smooth tones of Stanford and Harvard Law. The effect, alas, is no less noxious. Next time America’s corrosive politics comes up, it’s worth remembering that the justice so often hailed as a “moderate” or “centrist” has done as much as any to fan the flames of America’s raging culture war.

Read the whole thing.

Independent Women’s Forum’s mission is to improve the lives of Americans by increasing the number of women who value free markets and personal liberty. Sister organization of Independent Women’s Voice.
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