The Moralism of Appearances

Commentators (such as Garrett Epps and Dahlia Lithwick in Slate) have been puzzling over Justice Kennedy’s majority opinion in Carhart II. I wonder if anyone else finds an echo of the Court’s opinions in the “racial gerrymandering” cases of the 1990s. I believe Justice Kennedy signed on to Justice O’Connor’s majority opinions that made the way legislative districts were drawn determinative as to whether they embodied a form of racial “apartheid.” I’m pretty sure he wrote some of the majority opinions in this strange line of precedent. The gerrymandering cases rested on what could be called the moralism of appearances. Never mind the actual history of why the districts were drawn as they were, what mattered to the Court was that it appeared that race was all that was on the legislature’s mind. Similarly, in Carhart II, what seems to matter is the sanction the state wants to withhold from a medical procedure that appears just awful.

Perhaps Justice Kennedy all along has been more concerned with appearance rather than substance. He worried in Casey about what bans on all abortions would mean for how we regard women. He worried in Romer that the law appeared to withhold all forms of legal protection from gay citizens. And in Lawrence, he was most concerned with how a poorly reasoned opinion in Bowers appeared to demean gay citizens. I don’t think someone so concerned with appearances can really be morally serious. A concern with appearances allows Kennedy to escape dealing with substance, with the real reasons behind state laws and the fundamental rights they threaten.