Supreme Court Associate Justice Anthony Kennedy shouldn’t think of retiring to Sacramento or anywhere else in his native California.
If he does, he should be greeted rudely.
Kennedy has long leaned on the story of his California upbringing and early career to define himself as a grounded jurist. But in one of his final opinions on the court before announcing his retirement on June 27, Kennedy did more than take a gratuitous, false and deeply unfair swipe at his home state. Indeed, he and the Court majority actually compared California to Nazi Germany.
In a concurring opinion on a case that overturned a California law requiring crisis pregnancy centers, which try to prevent abortions, to notify pregnant women of their options, Kennedy essentially declared the state government to be an authoritarian government.
In particular, he singled out a congratulatory statement of the California legislature that the overturned law represented “forward thinking.” And that would have been fair enough – the law provides protection for women, but it also does restrict the speech of health providers. It’s possible to have a debate about it.
But Kennedy went much further with a lecture about the First Amendment and suggest Californians are authoritarian opponents of it. “History since then,” he wrote, referring to the 1791 adoption of the amendment. And there are reasons to debate the law on free speech, “shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come.”
Perhaps that seems like a minor offense, but Kennedy made his intentions clear by joining Justice Clarence Thomas’ opinion – which went further in comparing California’s actions in the law to that of Maoist Chinese, Soviet communists and the Nazis. Thomas’ technique was to quote a law review article from 1994, which read:
For example, during the Cultural Revolution, Chinese physicians were dispatched to the countryside to convince peasants to use contraception. In the 1930s, the Soviet government expedited completion of a construction project on the Siberian railroad by ordering doctors to both reject requests for medical leave from work and conceal this government order from their patients. In Nazi Germany, the Third Reich systematically violated the separation between state ideology and medical discourse. German physicians were taught that they owed a higher duty to the ‘health of the Volk’ than to the health of individual patients. Recently, Nicolae Ceausescu’s strategy to increase the Romanian birth rate included prohibitions against giving advice to patients about the use of birth control devices and disseminating information about the use of condoms as a means of preventing the transmission of AIDS.
To compare California’s law, which seeks to protect women from lies and unlicensed providers, to such historical episodes is so deeply wrong, it casts doubt on the judgment and fairness of the court majority, including Kennedy.
But it’s worse than that. Kennedy issued this opinion on the very same day that he provided the decisive vote for a 5-4 decision upholding President Trump’s Muslim ban. In that case, Kennedy said there was no problem with President Trump’s anti-Muslim and anti-migrant lies; he also punched a giant hole in First Amendment protections for freedom of religion in the process. That decision will devastate California institutions and families who rely on people banned from the country by Trump.
Kennedy’s inconsistency in this demonstrates dishonesty. He’s OK with a president’s consequential and bigoted lies, but opposes a state’s effort to require the telling of the truth. Kennedy himself then lies in calling California’s government as authoritarian and Nazi-like, even as he defends the prerogative of a truly authoritarian Trump administration—a government that California has sought to defend itself and the rest of the country from.
Kennedy, put simply, betrays American values. Which is why he shouldn’t retire here.