Rich Lowry

It should be no surprise how Kennedy construes the Eighth Amendment's prohibition of "cruel and unusual punishments." It is warrant for the court to exercise its "independent judgment" of "the evolving standards of decency that mark the progress of a maturing society," as Kennedy put it in this term's 5-4 Kennedy v. Louisiana decision forbidding capital punishment in cases of child rape.

The signature of a Kennedy opinion is vaporous moralizing, whatever side he comes down on. In the 1992 Casey decision upholding Roe v. Wade, he waxed poetic about "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of life." In the 2007 Carhart decision upholding the partial-birth abortion ban, he waxed again, this time about "respect for human life find[ing] an ultimate expression in the bond of love the mother has for her child."

Evidently, Kennedy goes about his job unburdened by the fact that his views on existence or on the mother-child bond have nothing whatsoever to do with the Constitution. But so it goes, as long as the Supreme Court is divided between four liberals, four conservatives and one self-important man who can't differentiate between his inner compass and the nation's fundamental law.

Kennedy fashions himself an instructor to the nation. And he is -- in the arbitrary ways of judicial lawlessness.

Rich Lowry

Rich Lowry is author of Legacy: Paying the Price for the Clinton Years .
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