This fall features the publication of a second book from that small group constituting present and past members of the Supreme Court of the United States. The first was Justice Amy Coney Barrett’s “Listening to the Law” and the second, out this month from Simon and Schuster, is Justice Anthony M. Kennedy’s “Life, Law & Liberty.”

The books contrast considerably in style, as Barrett is still relatively new to the high court and aims in her work to paint a picture of how the court functions as a branch of government and how she structures her work and legal philosophy. Kennedy, on the other hand, engages in more of a classic apologia pro vita sua, describing his biography, his long legal career, and, in several chapters of particular interest, revisiting and reasserting the thinking behind some of the court’s most controversial decisions in the modern era.

Kennedy was, as he acknowledges, a key player — the swing justice on a swing court, he lightly jests — in rulings on abortion and homosexuality that continue to spark public debate. The role he played on these topics — preserver of the Supreme Court’s 1973 ruling legalizing abortion nationwide, on the one hand, and imposing the legalization of same-sex marriage — was pivotal. He devotes a chapter to defending his actions in each case, and while he does not break new ground with respect to either one, he devotes enough space to each issue to demonstrate that he is not beset with any second thoughts on his handling of them. On Planned Parenthood v. Casey — the 1992 decision that upheld most of a Pennsylvania statute regulating abortion but established an elastic standard that the law may not impose any “undue burden” on a woman’s decision to seek an abortion — Kennedy admits that the court “had not defined precisely how to evaluate specific restrictions limiting abortion.”

The Casey decision came in the last of the Reagan-Bush years and, with the election of Bill Clinton, it brought to an end any imminent prospect that the court would reverse Roe. By that year, a majority of the court’s members had been nominated by Republican presidents, but three of the five — Kennedy, Sandra Day O’Connor, and David Souter — signed the majority opinion that, for all intents and purposes, preserved nationwide abortion for another three decades. The opinion had the side effect of immortalizing Kennedy’s poetic musing, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” a phrase Robert Bork (whom Kennedy ultimately replaced as President Reagan’s nominee in 1987) characterized as “New Age jurisprudence.” It’s safe to say that no one around Reagan knew that the Senate’s rejection of Bork all but guaranteed a signal failure of Reagan’s efforts to protect the unborn.

Oddly enough, while repeating his rationale in Casey and other abortion cases, Kennedy’s book makes not a single mention of the 2022 Dobbs ruling, now more than three years past. Instead, Kennedy devotes much of his prose to his personal reactions to the dissents in Casey and the gay rights cases and his relationship with Justice Antonin Scalia, who sharply disagreed with him in both instances. More on that in a moment. Considering the Casey ruling first, Kennedy’s autobiography is striking for how strongly worded its “pro-life” sentiments are. “Another life is involved,” Kennedy writes, “one that cannot speak for itself. For many of us, the unborn child cries out from the womb, cries out with a soulful voice to us and to the law: ‘Let me exist. Let me live.’”

Kennedy next says that “[b]ecause of my ever-present belief that life must be protected from the moment of conception, I struggled with the idea that the Constitution should allow some choice to end a pregnancy.” How then did Justice Kennedy lose his struggle with that idea? The answer the book provides is unpersuasive. At several points, Kennedy cites his religious upbringing as a Catholic for his pro-life views and describes his family’s generous response to any woman experiencing an unexpected pregnancy. There is very little in his writing that attempts to analyze the medical and legal history of abortion laws, a task at which the 1973 opinion by Justice Harry Blackmun also had demerits.

Some of the same faults are present in the Supreme Court majorities on abortion from 1973 to 2022 and on homosexual conduct from 1996 to 2015. Both sets of rulings needed to find a way to reflect the sense of their authors that popular sentiment and awareness were inevitably moving in the direction of legalizing practices that had not enjoyed popular approval throughout American history. The need to turn personal beliefs into logical necessities required Kennedy to dismiss history and, as his new work maintains, disparage those who held for centuries what we now see as blatantly unconstitutional views.

With respect to abortion, the means to this end was converting respect for life into a tenet of religion. But abortion was scorned in the practice of medicine long before Christianity appeared. The Hippocratic Oath dominated Western medical practice for two-and-a-half millennia, birthed by a Stoic philosopher who had never heard the name of Christ. At common law and in the United States, abortion was abhorred as a violation of the life of the child and a demeaning of the value of womanhood, and its main protectors were figures in the 19th century who also gave us laws against slavery and steps toward women’s suffrage.

Kennedy mentions none of this as his aim is to reclassify views on abortion, even his own, as mere personal opinions and not consensus about first principles. This posture becomes even clearer where he discusses the progression of cases over a 20-year period that completely reversed public policy on the protection of natural marriage and opposition to same-sex conduct. Here his analysis turns to disparagement of the Founders regarding their compromises on slavery at the creation of the Republic. Kennedy scorns the dissent of Justice Scalia in Romer v. Evans (1996), a case involving a referendum approved by Colorado voters that blocked inclusion of homosexuality in any state statutory non-discrimination law:

“On this last point, the dissent relied on the premise, which was likely correct if we reflect on where society stood two hundred years earlier, that neither the framers nor the nation at the time of the founding would have tolerated or recognized constitutional protections for gay persons. Yet that point, in the majority’s view, was not controlling, any more so than the idea that just because the framers accepted slavery, we should continue to do so today.”

This is dexterous stuff. The year 1996 was not 1776. What the court had before it was not some certifiably nugatory opinion held by the Founders (many of whom were more opposed to slavery than it is fashionable to admit in some precincts) but a contemporary vote by the people of Colorado, on a topic on which the states and Congress had repeatedly adopted laws for centuries. This same condition existed after the Romer ruling, but Kennedy and his majority, which declined to 5-4 in the Obergefell decision, weighed the outcome in terms of what he calls “awareness.” Referring to a prior case penalizing homosexual acts under state law, Kennedy wrote in Lawrence v. Texas, striking down such laws, “Bowers had failed to appreciate the nation’s ‘emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.’”

Similar reflections steered Kennedy through the more divisive ruling on same-sex marriage. He notes that by the year that case was decided by a single-vote margin, a number of states had legalized same-sex marriage. The majority, however, had done so by judicial decree, overturning the results of popular referenda that sought to maintain the world-historical definition of marriage as the union of one man and one woman. A tally I created for the Heritage Foundation in that period showed that nearly 65% of Americans, given the opportunity to vote on a momentous change in public policy, had backed retention of the natural definition of marriage. Even a narrow majority of Californians in a heavily contested referendum had done so. Where was “awareness” headed?

For Kennedy, it was indeed headed in the direction of the policy preferences of a narrow majority of the court. In any event, many collateral questions remain and a future court may yet wrestle with issues involving throuples, polygamy, and surrogacy, not to mention the coming questions of artificial wombs and baby farming.

As mentioned above, “Life, Law & Liberty” recounts Kennedy’s reconciliation with Scalia just before the latter left Washington for a trip to a Texas ranch where he passed away in his sleep. The description is poignant, and Kennedy describes Scalia as coming to his office at the Supreme Court and apologizing “for being intemperate” in the tone of his dissent from the Obergefell ruling. Others closer to Justice Scalia will have better insight into this account of a last meeting between two powerful jurists, but that Scalia maintained warm relationships with people whose views he ardently challenged is well known, especially his closeness with Justice Ruth Bader Ginsburg. He was not one to treat either issues or people according to his legal or policy preferences. His standard in the law paid tribute to original intent, judicial restraint, and the detailed history of a free people, free as he noted in one case, “to change their mind.” We are at a loss not to have his own account of these tumultuous decades in the life of the nation.

The Kennedy and Barrett books can be read usefully as contrasting accounts of the nature of the judiciary and the sources of the law. After a generation of tumult on the court that shows no signs of abating, these new works offer insights into all that is at stake in these debates.