Justice Kennedy and the Future of the Supreme Court
U.S. Supreme Court Justice, Anthony M. Kennedy Original photo credit: http://cdn.quotesgram.com/img/2/57/702418048-Getty_032712_JusticeAnthonyKennedy.jpg |
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: http://cdn.quotesgram.com/img/2/57/702418048-Getty_032712_JusticeAnthonyKennedy.jpg |
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.
References:
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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