Friday, February 10, 2017

Keeping an Eye on Justice Kennedy

Justice Kennedy and the Future of the Supreme Court

U.S. Supreme Court Justice, Anthony M. Kennedy
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A long time ago, around the time I was contemplating topics for my doctoral dissertation, I was asked by my advisor, “who among the sitting justices do you think will have had the greatest influence on the Court fifteen, twenty years from now?”  It was a potentially thorny question, posed by a man who was himself a leading judicial scholar, and the expert on the career of former Chief Justice Warren E. Burger (1969-1986). He was also known for unexpected and tricky questions, and so my mind raced quickly through the various concepts and measures of judicial influence we had addressed in his seminar. Even though I was sort of sure he wanted me to land on John Paul Stevens, I boldly announced my pick, oblivious to the consequences. “Justice Kennedy,” I said.

The consequences were that after, I had explained why, I would spend a great deal of my time reading every one of Kennedy's written opinions and writing The Constitutional Jurisprudence of Anthony M. Kennedy. By the time I defended the dissertation in 2001, I decided that I had chosen well: Kennedy was emerging a so-called “swing-justice.” He was the “man-in-the-middle” having racked up a tally as the justice most often in the majority of 5-4 rulings and the least likely to author a dissent. Appointed by Ronald Reagan in 1987, Kennedy was a conservative, but he was also within the ideological central of the Burger and Rehnquist Courts. On closely divided issues, more often than not, as Kennedy went, so went the Court. 

Flash forward to 2017. The Supreme Court is ideologically split 4-4 and has been operating one justice down ever since the death of conservative icon, Justice Antonin Scalia, in February of 2016. President Obama’s nominee for the vacancy, Merrick Garland, was successfully blocked by the Senate Republicans who refused give the late-term appointment a hearing. Just two weeks into the job, President Donald Trump has nominated Judge Neil Gorsuch of the 10th Circuit Court of Appeals. Jurisprudentially, Gorsuch’s confirmation would not dramatically shift the ideological center of the Court insofar as it replaces one conservative with another whose jurisprudence is much in the same mold. But the next appointment might, depending on who is the next member of the Court to depart.

Memes have emerged encouraging the oldest member of the Court’s liberal wing, Justice Ruth Bader Ginsburg, to stay healthy, to please “eat more Kale.”  When asked last week which of her colleagues she would encourage do the same, the diminutive jurist did not hesitate: “Justice Kennedy,” she said. 

Justice Ruth Bader Ginsburg, speaking at the Rathburn Lecture on a Meaningful Life, 
Stanford University, February 6, 2017.
Photo credit: The Mercury News (2017). 

Ginsburg did not single Kennedy out because he is a member of the liberal block or because at 80 he is the Court's next oldest member (Ginsburg is 83). Most likely she chose Kennedy because he stands as the member of the conservative block who, given his particular brand of jurisprudence, is most open to persuasion on a number of key issues likely to come before the Court.   

As I have argued elsewhere, Kennedy is not a proponent of a “living constitution,” but his interpretative methodology is sensitive to what I’ve termed “emergent rights” – rights “that while perhaps not yet sufficiently well-grounded in history and tradition as to be considered fundamental have nevertheless emerged from ‘the continuing traditions of our society’ or are so closely connected ‘with interests recognized as private and protected’ as to be entitled to more than minimal review” (Parshall 2006, 268). 

Kennedy was the author of several rulings invalidating the juvenile death penalty, overturning Texas’same-sex-sodomy ban, and authoring the opinion recognizing the Constitutional right for two individuals of the same sex to legally marry – rulings which were influenced by his recognition of changing social views both domestically and abroad and his felicity to the concepts of liberty and equal protection (Parshall 2007).  In each of those rulings, and much to Scalia’s disdain, Kennedy had incorporated standards of international law and practice into his rulings (Hutt and Parshall 2007).   

A pragmatist, Kennedy has a deeply abiding respect for the Supreme Court as an institution and for the rule of law, which includes a commitment to stare decisis.  “Liberty has no refuge in a jurisprudence of doubt,” he wrote, when he voted, as part of a plurality, to uphold the central holding of Roe v. Wade. What he meant was that the public would have no faith in the Court as an institution, or in the security of their fundamental liberties, if the Court were to abandon its fidelity to precedent in the face of political pressure.   

On questions of executive authority, Kennedy has been deferential but has displayed a resolute commitment to the role of an independent judiciary.  When the Bush Administration sought to foreclose federal judicial review of habeas petitions bought by foreign detainees held as part of the War on Terror, Kennedy kept the door of jurisdiction open.  The “laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law” he wrote. In our system of separate powers, executive powers are strengthened not weakened by careful judicial review. 

There has been some speculation that it is Kennedy’s seat which Trump and congressional Republicans most covet (and that may be true).  Gorsuch’s nomination, some argue, may be an effort to convince Kennedy that it is time (and safe) to step down – Gorsuch is a former Kennedy clerk.  But that presumes that Kennedy is ready to go.  As long-time judicial observer, Dahlia Lithwick and her co-author, Neil Siegal note, Kennedy is “not stupid” and it is not likely Gorsuch would rule similarly in the cases which comprise Kennedy’s legacy.  With 28 years of service, Kennedy is the Court’s most senior justice (after the chief justice, who regardless his length of service, is automatically granted senior ranking as primus inter pares, “the first among equals.”  

Of the Court’s conservative members, Kennedy is the justice that President Trump would probably be rightly advised to most fear as least likely to be counted upon for support when it comes to several issues of likely importance to the administration (based upon policy directions the administration has already signaled). Justices Clarence Thomas and Samuel Alito are reliably conservative votes, adhering to an originalist interpretation and advocating for the strict construction of the Constitution.  Both have endorsed strong executive powers, have repudiated the incorporation of international jurisprudence and tend to favor governmental authority over claims of individual rights and liberties.  Chief Justice Roberts’ conservative voting record and affinity for judicial minimalism (a restriction of the judicial role) suggest that he would not be disposed to aggressively use judicial authority as counter-balance to executive authority – although Roberts does bear watching on some issues. When the institutional authority and independence of the federal judiciary is threatened, the modern Supreme Court has not hesitated to push back. Kennedy holds the view that judicial vigilance is an indispensable feature of our constitutional design and is necessary to the preservation of liberty.  

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Kennedy stands apart from his conservative colleagues, not just on the basis of his voting record, but because his rulings have reinforced the legitimacy, autonomy, and jurisdiction of the Court. In challenges to executive authority, in questions involving separation of powers and the division of power between the federal government and the states, on any issue likely to produce an ideological divide, litigants and their lawyers would be wise always to pitch their legal arguments in order to appeal to the “man in the middle.”  

John Roberts may be the Chief Justice – but it is Kennedy’s Court.  And it has been for awhile. 

David Hutt and Lisa K. Parshall, Divergent Views on the Use of International and Foreign Law: Congress and the Executive versus the Court, Ohio Northern University Law Review Volume 33(1):113-152 (2007).

Lisa K. Parshall, Redefining Due Process Analysis: Justice Anthony M. Kennedy and the Concept of Emergent Rights, Albany Law Review, 2006, Volume 69(1):237-298.  

Lisa K. Parshall, Embracing the Living Constitution: Justice Anthony M. Kennedy’s Move Away from a Conservative Methodology of Constitutional Interpretation, accepted for publication by North Carolina Central University Law Journal, 2007, Volume 30(1): 25-74.  

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