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
Original photo credit:

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.  

Original Photo credit:
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.  

Wednesday, February 8, 2017

The New York State Constitutional Convention Question

New York State’s Constitutional History

                Although this document has been amended (more than 200 times since 1895), New York state is governed by a constitution which was adopted in 1894. 

On November 7, 2017, the citizens of New York will have the opportunity to vote on the question of whether to call a state constitutional convention for the purposes of proposing constitutional change and reform.  The state constitution itself mandates that this question be placed before the voters every twenty years (N.Y. Const., Art XIX, Sec 2).  In 1977 and 1997 (the last two mandatory votes), the voters turned the question down at the polls. 

If a majority of New Yorkers do vote yes on the 2017 ballot question, delegates (to be elected in 2018) would convene in 2019 with purpose of revising and amending the State’s constitution.  Whatever proposals the convention produces would not go into effect before being ratified (approved by the voters in a yes or no vote), whether individually or as a single-package.  There have been only 3 post-1894 constitutional conventions: in 1915, 1938 and 1967 (a convention called by the state legislature and approved by the voters). Only 1 of these (1938) resulted in significant revision; the proposals of the 1915 and 1967 conventions were rejected by voters when submitted for ratification. In 1967, voters were presented with ratification as a single package -- meaning that their ballot choice was to accept all of the proposed changes or none at all.  The rejection of the convention's work after a time-consuming and expensive process discouraged some voters from supporting a convention in 1997.  

Why It Matters

                The 2017 vote is a historic opportunity for New York's citizens to demand constitutional reforms and to directly participate in the governance of their state.  The potential topics for consideration include: strengthening state ethics and public-corruption laws, state legislative redistricting and reforms, campaign finance reform, the redefinition of gubernatorial powers and implementation of clear succession rules, state court and judicial selection reform, taxation, and state and local government financing reform.  Among the many policy issues for potential consideration would be state gaming laws, environmental protections, reproductive rights, protections for minorities, immigrants, and refugees, and state educational standards. On a daily basis, we are each of us, impacted directly by the functioning (or lack thereof) of our state and local governments.  The decisions made in Albany have significant repercussions for all New Yorkers both upstate and down. A lot has changed since 1894, and many of the issues about which we care deeply are shaped by state constitutional provisions

The New York State Legislature: Photo credit, Lisa Parshall

In the current divide over the executive actions and policies of the newly elected Trump Administration, the role of state and local government is on display as never before. Citizens who are dissatisfied with national policy trends have always turned to their state governments to protect and preserve their interest. In the United States Constitutional system, federalism (and the sovereign role of the states) is one of the great checks and balances, ensuring the comity of local and national interests.  Citizens look to and use their state government to impact and to respond to policy changes at the national level. There is perhaps no greater moment for achieving reform than through the state constitutional convention.   
How to Learn More    

              Sienna College's statewide polling has found that, although 69% of New York voters support calling a convention, more than two-thirds of them have not seen or read information on the upcoming vote.  The League of Women Voters and the Rockefeller Institute of Government are two good places to start if you want to learn more.  On these sites you will find details on the history and work of New York's past constitutional conventions, as well as links to editorials and news coverage of the upcoming “Con-Con” vote. 

                On April 22, 2017, the State and Local Politics Section of the New York State Political Science Association (NYPSA), will be holding a keynote roundtable event featuring a panel of leading experts on the history and politics of the New York State Constitutional Convention.. Daemen students and faculty are encouraged to attend.

For more information on this event, please contact, Dr. Lisa Parshall, Chair, State and Local Politics Section of the NYSPSA: ( 

                In Fall 2017, the History & Political Science Department will be offering PSC 114, State and Local Politics, a course dedicated to promoting civic literacy and an understanding of the critical role played by state and local governments.  A number of our majors have conducted senior thesis projects on issues of state and local importance, including state senate redistricting (Altman-Cosgrove, 2012), ethics and corruption reforms (Fripp, 2016) and state constitutional conventions (Maulucci, 2016). 

Cartoon, "It Shouldn't Happen Here," by Jerry Costello, May 2, 1938, Knickerbocker News, Archival Image from
the New York State Archives collected by Dr. Lisa Parshall in her research on state constitutional history.
Opponents of state constitutional conventions express skepticism regarding the ability of the convention to implement reform in the voters' interest. The argument is that the delegate selection process favors the selection of elected leaders and party officials -- insiders with vested interests and the capacity to block significant reform.  
Cartoon, "What the People Expect," by Jerry Costello, April 18, 1938, Knickerbocker News, Archival Image from  
the New York State Archives collected by Dr. Lisa Parshall in her research on state constitutional history.  
This image highlights the high expectations the public has for "statesmanlike leadership" in the solemn task of  state constitutional reform and lurking danger when partisan bickering and politics infiltrates the convention process.  The constitution directs the delegate selection process -- the reform of which is itself a potential target for revision by the convention.