Anthony Kennedy: The U.S. ‘Is Not a Functioning Democracy’

The Supreme Court justice says that nine unelected judges shouldn’t have to resolve the nation’s most serious issues. But a lot of those decisions fall to him.

Anthony Kennedy, associate Justice of the United States Supreme Court, speaks to members of the ABA at the Moscone Center August 13, 2007 in San Francisco, California.
National Journal
Brian Resnick
Oct. 4, 2013, 8:19 a.m.

As the usu­al swing vote on the Su­preme Court, Justice An­thony Kennedy has a strong hand in shap­ing the laws and policies of the United States. But maybe he sees his in­flu­ence on U.S. law a bit un­due. While teach­ing this week at the Uni­versity of Pennsylvania, here’s what he had to say, via the AP

Any so­ci­ety that re­lies on nine un­elec­ted judges to re­solve the most ser­i­ous is­sues of the day is not a func­tion­ing demo­cracy.

I just don’t think that a demo­cracy is re­spons­ible if it doesn’t have a polit­ic­al, ra­tion­al, re­spect­ful, de­cent dis­course so it can solve these prob­lems be­fore they come to the Court.

Most re­cently, he wrote the ma­jor­ity opin­ion for U.S. v. Wind­sor, the case that struck down the De­fense of Mar­riage Act. Also re­cently, he sided with the ma­jor­ity, this time with the con­ser­vat­ives, in the di­vis­ive Shelby County v. Hold­er case, which in­val­id­ated a por­tion of the Vot­ing Rights Act. Kennedy was the swing vote both times.

It’s not too much of a stretch to say that Kennedy’s was the only de­cision that mattered in these cases. In the 2010-2011 Su­preme Court term, Kennedy voted with the ma­jor­ity 94 per­cent of the time.

In a lot of the cases, nine un­elec­ted judges is really only one. And it’s An­thony Kennedy.