Late last week, the erstwhile political theorist in me got a double dose of idealism from high places. It was restorative.
First, of course, was Justice Kennedy’s opinion recognizing same-sex marriage under the banner of the equal protection of the laws. The final paragraph of his opinion was extraordinary.
He was clearly swinging for the fences, but I’d say he succeeded. The language of dignity and inclusion wasn’t strictly necessary to justify his reasoning, but it served both to sell the result and to elevate the discussion. When talking about a narrow intellectual property dispute, go ahead and be dry and technical. When discussing fundamental questions about the ways people live their lives, though, that kind of narrowness comes off as disingenuous, if not deceptive. At a really basic level, this decision was about fairness. That doesn’t need to hide under legalisms.
(Kennedy’s piece stood in notable contrast to Scalia’s dissent, which could charitably be called “dyspeptic.” Over the course of his career, Scalia has moved from tragedy to farce; “ask the nearest hippie” is as close to an admission of intellectual bankruptcy as I’ve seen from the Court. At least “I know it when I see it” had a certain wit to it.)
I’m just old enough to remember the Bork hearings in 1987. For younger readers, Robert Bork was nominated by President Reagan to fill a vacancy on the Supreme Court. Bork had a track record as an outspoken conservative. Liberals went after Bork at the confirmation hearings -- at the time, the Senate Judiciary Committee was chaired by an ambitious young Senator from Delaware named Joe Biden -- and managed to block the nomination. A new verb came into being -- getting “Borked” -- and Anthony Kennedy got the seat. For a while, it seemed like Kennedy was a Bork in sheep’s clothing.
Knowing that Kennedy wrote the majority opinion, there’s a strong argument to be made that “Borking” was the right move.
That same week, President Obama gave his eulogy for the murdered prayer circle at Emanuel A.M.E. Church. If you haven’t seen it yet, watch it. It’s the best speech Obama has ever given, to my knowledge, and he’s given some good ones. It’s extraordinary.
For all of the “secret Muslim” talk, Obama is clearly comfortable in, and familiar with, the A.M.E. church. The media focused on his singing, and I get that, but follow his use of “grace” as a theme. It was brilliant, and I don’t mean that cynically. When he used “grace” as a Christian form of Hegel’s “cunning of history,” noting that the killer had no idea that the effect of his actions would actually be to move equality forward, I gasped. Everything about that move was perfect. It was both inclusive and superior, both accessible and sophisticated. It allowed a broader perspective while still striking a note of humility. It made taking the high road both morally fulfilling and tactically devastating. As a longtime student of political argument, I tip my cap. It was elegant, memorable, situationally appropriate, and affirming. It was how political speech should be done.
Following politics -- partly by training, partly by vocation, and partly by virtue of working in the public sector -- it’s easy to dismiss political speech as little more than advertising. It’s an unsatisfying mix of code words, evasions, and cynicism. As our politics become steadily more libertarian, the very idea of a “public” to be addressed can seem quaint. Those of us who believe in the “public” as a real thing -- served, for example, by public higher education -- the reduction of public speech to horse-trading and coded tribalism can be dispiriting. Over time, it’s easy to forget why we bother trying.
But Justice Kennedy -- a Republican appointee, for those keeping score -- and President Obama each offered a more-than-welcome reminder of what public speech can be. At its best, it reminds us of the reality of aspirational ideals. It affirms us as capable of more than what we’ve done. It validates hope, and shows that progress is real.
I didn’t know how badly I needed that. For a couple of days, America showed its best. It did what it does in its finest moments: it expanded the circle of “us,” and opened up the high road. Sometimes, we can be better than we have to be.
