Constitutional law professor Josh Blackman blogs:
June 26, 2015 fell on a Friday. At the time, it was fairly unusual for the Supreme Court to hand down opinions on a Friday. But wouldn’t you know it, Pride weekend would begin the next day. At the time, David Lat wondered if Joshua Matz, one of Kennedy’s clerks “pointed out to his boss . . . that handing down Obergefell on June 26 would basically turn that day into Justice Anthony M. Kennedy Day for the LGBT community.” And so it came to pass.
It is difficult to think of any decision that had a more harmful effect on democracy than Obergefell. What still galls me about the decision is that public opinion was trending, rapidly, in favor of a right to same-sex marriage. Within only a few years, states that approved of same-sex marriage would have reached a critical mass…
Chief Justice Roberts stated the issue plainly in one of his greatest dissents:
Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.
This windup brings me to remarks that Justice Kennedy made–on all days–June 26, 2025.
“Many in the rest of the world look to the United States to see what democracy is, to see what democracy ought to be,” Kennedy said during an online forum about threats to the rule of law. “If they see a hostile, fractious discourse, if they see a discourse that uses identity politics rather than to talk about issues, democracy is at risk. Freedom is at risk.”
I suspect that Justice Kennedy sees President Trump as a threat to Democracy–a threat heightened because Kennedy chose to retire under Trump. I think back to that moment at the White House where Kennedy wagged his finger at Trump over something, and Trump just walked away. How will Justice Kennedy discuss that incident in his memoir?
Justice Kennedy should look at how his own decisions subverted democracy without even the faintest patina of law.
On this eve of Independence Day, we should not lose sight of the most important freedom–the right of self-governance. Here I quote from Justice Scalia’s Obergefell dissent:
Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges.
I still miss Justice Scalia. No one on the Court can come close to his prose. Alas, as evidenced by Skrmetti, we are still living in Justice Kennedy’s shadow.
I asked ChatGPT to apply the insights in this Blackman post to the above documentary. It said:
Josh Blackman’s column casts a harsh but clarifying light on the PBS Frontline documentary by exposing the deep tensions between elite-led progressivism and popular self-government—tensions the documentary largely obscures or treats as settled.
1. The Myth of “Democracy at Risk”
Justice Kennedy laments “hostile, fractious discourse” and the dangers of “identity politics” as threats to democracy. Yet as Blackman notes, Kennedy himself played a central role in subverting democratic deliberation via rulings like Obergefell v. Hodges. The irony is glaring: a justice who nullified ongoing public debate now poses as a defender of civil discourse. For critics like Blackman, this posture is pure chutzpah—using the language of democracy to justify elite imposition.
This critique aligns with Stephen Turner’s argument in Liberal Democracy 3.0: rule is increasingly exercised through technocratic fiat, cloaked in moral language, while democratic input is sidelined. In the Frontline documentary, figures like Luttig and French echo Kennedy’s tone—casting threats to “democracy” as emerging exclusively from Trump and populism, never from judicial overreach or elite insulation.
2. Managerial Moralism Over Majoritarian Consent
Blackman invokes Scalia to highlight that the Founders did not envision courts dictating moral and social outcomes absent legislation. This resonates with Darel Paul’s argument: that the elite moral regime has supplanted democratic decision-making with professional-managerial consensus, especially on cultural questions. Obergefell was not merely a legal decision—it was a paradigmatic assertion of this consensus over dissenting publics.
In Frontline, the frequent invocations of the “rule of law” and “our institutions” rarely reckon with how those institutions have insulated themselves from democratic accountability. Blackman’s piece reminds us that defenders of the liberal order often assume that the outcomes they prefer are democracy—even when achieved through anti-democratic means.
3. Identity Politics and Symbolic Politics
Kennedy’s warning about “identity politics” is particularly rich given the symbolic timing of Obergefell—delivered just before Pride weekend. Blackman, quoting David Lat, suggests this was not incidental. The court, far from being above identity politics, actively participated in it—embedding political symbolism in legal decisions. The Frontline documentary similarly weaponizes identity (especially race, gender, and sexuality) as moral legitimizers for political outcomes, while casting any resistance as dangerous grievance.
4. The Rhetorical Role of “Democracy”
Kennedy’s rhetorical deployment of “democracy” mirrors what Clinton Rossiter warned about: how elite institutions invoke sacred language not to extend freedom, but to stabilize authority. The same rhetorical sleight-of-hand saturates Frontline: elite actors speak solemnly of norms and democracy while bypassing the mechanisms of popular rule.
Bottom line:
Blackman’s critique underscores how elite figures like Kennedy—and by extension, the Frontline documentary—invoke “democracy” not to describe a system of public self-rule, but to defend a system of elite arbitration. The column reframes Frontline not as an analysis of democracy in crisis, but as a ritual performance: elites narrating their own moral legitimacy while obscuring their role in provoking democratic disillusion.
