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The Tempting of Justice Kennedy

Posted on: Jul13 2012 | Leave A Comment

Starting in April 1992, when the case was argued, conservatives
looked forward to the Supreme Court’s decision in Planned
Parenthood
v. Casey. At issue was the
constitutionality of a Pennsylvania statute regulating the abortion
industry. Chief Justice William Rehnquist was likely to sustain all
of the challenged Pennsylvania provisions, on grounds he had
established in his plurality opinion for the Court three years
earlier in Webster v. Reproductive Health Services – that
abortion is not a fundamental right but a “liberty interest”
subject to reasonable government regulation. There seemed little
doubt that Rehnquist, the three Justices who had joined him in
Webster (Antonin Scalia, Anthony Kennedy, and Byron
White), and at least new justice Clarence Thomas would rule in
favor of the Pennsylvania law. If they did so, they likely would
follow the lines set forth in Webster. Such an opinion and
Roe v. Wade could not co-exist. Planned
Parenthood
v. Casey would thus overrule
Roe.

But on June 29, 1992, only four justices voted for the second
coming of Webster and a de facto overruling of
Roe; Justice Kennedy had gone over to the other side. In
their joint opinion for the Court, Kennedy and Justices Sandra Day
O’Connor and David Souter upheld four of the regulations but voided
the fifth under a newfangled “undue-burden test.” The big news of
the majority opinion was its reaffirmation of “the essential
holding” of Roe.

What had gone wrong for the so-called “conservative” Court?

ON SEPTEMBER 4, Rowland Evans and Robert Novak were the first
journalists to report what had been bruited about in legal circles
during the summer: that Justice Anthony Kennedy had “flipped” — or
changed the vote he cast in the April judicial conference — in
Casey, thus unmaking the Rehnquist majority that would
have overruled Roe. Kennedy’s equivocation amounted to an
epochal reversal for anti-abortion conservatives, but with the
notable exception of the Los Angeles Times’s David Savage,
Supreme Court reporters made little effort to pursue the story.

On October 25, the New York Times ran a front-page
piece by Supreme Court reporter Linda Greenhouse, detailing how
O’Connor, Kennedy, and Souter, appointed by Presidents “eager” to
see much of the legacy built by Justices William Brennan and
Thurgood Marshall dismantled, were now offering “remarkable
testimony to the impact of these liberal giants . . . on their own
lives as Justices.” In a subordinate clause buried in the thirtieth
paragraph, Greenhouse disputed the Evans and Novak report that, as
she put it, “Justice Kennedy had changed his vote in the
Pennsylvania abortion case at the last minute.”

On the theory that perhaps Greenhouse had written an earlier
story explaining what she now stated so cryptically and
authoritatively, I called her. No such story, she said. On what
then did she base her assertion that Evans and Novak were wrong and
that Kennedy had not flipped? “My sources” — who remained
anonymous.

BUT MY OWN SOURCES advise that Kennedy did flip (and not only in
Casey, but also in his earlier vote in Lee v.
Weisman, in which, writing for a five-person majority, he
appeared to contradict what he had said in a 1989 case by now
declaring that non-sectarian prayers said at public middle- and
high-school graduation ceremonies violate the First Amendment’s
establishment clause). There is good reason to believe that what
was handed down on June 29 reflected what happened in conference
two months before. Rehnquist would customarily have written at
least one opinion for the Court in April, but he wrote none. And
Justice Harry Blackmun’s opinion in Casey, as first
released, indicates that Rehnquist had assigned himself the
majority opinion. Criticizing Rehnquist’s opinion, Blackmun refers
to it as ante, or “before.” (The Court opinion is always
published first, before concurrences and dissents. Blackmun’s
reference to ante was later changed to post.)

Blackmun also writes, in a footnote critical of Rehnquist:
“Obviously, I do not share the plurality’s view of homosexuality as
sexual deviance.” The “plurality”? This reference suggests that the
Chief started out writing a majority opinion that, in the process
of circulation, became a plurality — as the majority split on the
reasoning. But he still had five votes for the result — to sustain
all the regulations. Someone flipped, most likely Kennedy. In their
party celebrating the end of the court’s term, the clerks performed
a few skits. “When a character portraying Kennedy was introduced,”
reported the Los Angeles Times’s Savage on December 10,
the clerks “played the theme song from ‘Flipper,’ the old TV show
about the playful dolphin.”

Now, “flipping” isn’t criminal or unethical, but it is rare,
happening only once or twice a term. In this case, it raises
questions: Who advised Linda Greenhouse that the Evans and Novak
story was inaccurate? Did Kennedy ask a friend to talk to
Greenhouse? Did Kennedy himself speak to her?

It would not have been out of character for Kennedy. As it turns
out, the hour before Casey was handed down, Kennedy was in
his chambers with a writer from the California Lawyer, who
reported in the October 1992 issue: Justice Kennedy

stands at the window of his high-ceilinged chambers, waiting to
go on the bench, looking down at the crowd of competing protesters
in the plaza below. … He looks at the crowd for a long moment.
“Sometimes you don’t know if you’re Caesar about to cross the
Rubicon,” he says, his voice becoming almost inaudible, “or Captain
Queeg cutting your own tow line.”

Ten minutes before the Justices gather to announce the decision,
this Caesar in robes (surely he did not fancy himself Queeg) asks
to be alone. “I need to brood,” he tells the reporter. Kennedy will
later tell the journalist that “only history can tell” if he’s done
the right thing.

Anthony Kennedy is interested in history, especially the history
of the Supreme Court; pointing to the pictures of Justices on the
walls inside the Court, Kennedy tells clerks and friends stories
about each one. His interest is more than academic: Kennedy assigns
clerks the job of clipping and entering into a notebook all stories
about him. He cares about how history will regard him, and
therefore about how the first drafters of history — today’s
journalists — treat him. As a lawyer who has worked with Kennedy
put it, “He thinks he’s Oliver Wendell Holmes.”

COURT OBSERVERS have advanced various explanations for Kennedy’s
vote in Casey. Some argue that Harvard Law School’s
Laurence Tribe — the two have taught law together during the
summer in Austria — has bewitched Kennedy. (Tribe supported
Kennedy’s confirmation to the Court.) Or that Tribe-taught clerks
have bewitched him, particularly Michael Dorf, Kennedy’s clerk in
Casey, who in 1991 co-authored a book with Tribe that
praised Kennedy.

But their influence must be understood in context. Prior to his
elevation to the Supreme Court, there were already two Kennedys:
one was the judicial conservative, albeit not an intellectually
rigorous one; the other, seen only occasionally, was a judge open
to the kind of claims that lead to activism. On the Supreme Court,
the first Kennedy is often at work, but the second Kennedy has been
evident at times, and in Casey, which was handed down on
the very last day of the term, this Kennedy emerged full-blown.
Tribe & Co. have encouraged this second Kennedy, but he is also
the product of his own ambition. This is where the Greenhouse
Effect kicks in.

Thomas Sowell coined that term, after the Times’s
Greenhouse. The Greenhouse Effect is the impact activist Court
reporters — there rarely is any other kind of Court reporter –
can have upon the decision-making of judges like Kennedy. These
journalists bear the typical American impatience with forms, and
depict judges who seek to enforce forms — rules of law — as
lacking compassion. Such judges are “theoretical” or “ideological”
– awful things to be — while activist judges are praised for
their “non-ideological,” “case-by-case” approach.

This past term, for example, Justices Thomas and Scalia
dissented from a majority ruling that, citing society’s “evolving
standards of decency,” sided with an inmate in a Louisiana prison
who complained that a beating administered by guards violated the
Eighth Amendment’s prohibition against cruel and unusual
punishment. Thomas, who wrote the dissent, said that the guards’
behavior was contemptible and may have been tortious or criminal,
but was not unconstitutional under the Eighth Amendment. For this
refusal to rewrite the Constitution for the sake of a Louisiana
prisoner, Thomas was reviled in the press — “the youngest,
cruelest Justice,” said the New York Times.

By contrast, the Legal Times published a paean to the
“constitutional journey” that had taken Kennedy to his opinions in
Lee v. Weisman and Casey. What explains
his journey, the paper said, was not “ideology” but a “hankering to
be fair.” In short, “values . . . count for more than theories with
him.” Similarly, Linda Greenhouse quoted Kennedy’s own words of
praise (in the Stanford Law Review) for Thurgood Marshall
as a way of explaining — and reinforcing — his move to the
center: “Perhaps [Kennedy, O'Connor, and Souter] are now finding
themselves at times trying to take account of Justice Marshall’s
perspectives on the issues that ‘all decent societies must explore
and attempt to resolve,’ in Justice Kennedy’s words.”

A justice with an eye on history knows that what the first
drafters of history reward is “growth.” But let us behold what
Kennedy’s growth has meant. Whether Roe v. Wade
is good constitutional law and would endure as constitutional law
has been the jurisprudential question of the past twenty
years. Most observers expected Kennedy, if not to overrule
Roe, certainly not to reaffirm it. Kennedy has not only
stymied the effort within the Court to overrule Roe, but
also embraced a doctrine of the self that could undermine every law
based on traditional religious morality. (For what it’s worth,
Kennedy — with his opinion in Casey — has already passed
Bill and Hillary Clinton’s litmus test for Supreme Court nominees.)
Kennedy’s performance in Casey, precisely because of the
importance of the issues involved in the case, raises doubts about
a tenure that until now was conservative, if with a discernible
activist streak. If the Kennedy of Casey is a sign of
things to come, his growth rate might even surpass that of another
“grower,” Harry Blackmun, appointed in 1971 by Richard Nixon.

Like Justice Kennedy, Blackmun was his sponsoring President’s
third choice for a Supreme Court seat. Like Kennedy, Blackmun was
regarded upon taking office as the ideological twin of a
conservative Justice, in this case Warren Burger. And like Kennedy,
he cast generally conservative votes in his first years on the
Court. But in 1973 Blackmun wrote the opinion in Roe v.
Wade, arguably the most activist opinion ever.
Roe was Blackmun’s coming out; it signaled his future. In
1982 the Harvard Law Review published a student note
hailing “The Changing Social Vision of Justice Blackmun.” It cited
statistics showing Blackmun’s voting record in declining agreement
with Chief Justice Burger and Justice Rehnquist and in increasing
agreement with Justices Brennan and Marshall. Blackmun went from
almost 90 percent agreement with Burger in 1970-71 to 56 percent in
1980-81, and from 82 percent agreement with Rehnquist in 1971-72
(Rehnquist’s first year) to 52 percent in 1980-81. (Blackmun, by
the way, agreed with Rehnquist 48 percent of the time in 1991-92.)
The note’s author remarked that while Blackmun early on wrote
opinions that “conveyed a vision of healthy, self-governing
institutions rightly developing free from judicial intrusion,”
these fortunately gave way to opinions responding “to a perception
of concrete problems that cry out for judicial response and
correction.” Can we expect the Harvard Law Review someday
to run an article entitled “The Changing Social Vision of Justice
Kennedy”?

IN 1987, President Reagan nominated Robert Bork to the seat
vacated by Justice Lewis Powell. The vicious and — because of its
use of modern media techniques — unprecedented campaign to defeat
Bork succeeded, leading Reagan eventually to nominate Kennedy, who
was unanimously confirmed.

A judge for twelve years on the Ninth Circuit Court of Appeals,
Kennedy was regarded as conservative but non-Borkean. That is, he
could be expected to defer to legal text and history, but also to
be “open,” unlike Bork, to arguments rooted in recent experience
that might amend traditional rules of law. In his confirmation
hearing, Kennedy said the Constitution protects “a value we call
privacy.” Unlike Bork, he declared that judges should protect
rights not enumerated in the Constitution, and talked generally
about a Constitution with a capacity for growth.

When he took office in early 1988, Kennedy had a high regard for
Scalia and Rehnquist, and both sought to cultivate their newest
colleague. Kennedy’s very first opinion, in Bethesda Hosp.
Ass’n
v. Bowen (1988), bore the marks of a judicial
conservative, as Kennedy argued that in interpreting a statute
judges should consider only text, not legislative history. In the
1988 term, Kennedy voted with, and for the most part signed on to,
the reasoning of Rehnquist and Scalia. Only O’Connor (93.4 percent)
voted more than Kennedy (92.1) did with Rehnquist, and no one voted
more than Kennedy (85 percent) with Scalia. Kennedy joined
Rehnquist’s plurality opinion in Webster, and his vote
helped make the difference in a series of key civil rights
rulings.

Kennedy’s presence often gave Rehnquist working majorities, and
the Chief Justice gave Kennedy plum assignments, including the
opinions in two cases upholding the constitutionality of drug
testing. And in Public Citizen v. Dept. of
Justice,
Kennedy reiterated the importance of looking at “the
plain language of the statute” when interpreting it, and insisted
that “this Court must not arrogate to itself the power to adjust a
balance [of powers] settled by the explicit terms of the
Constitution.” In Allegheny County v. ACLU,
Kennedy deplored as “bizarre” the split result in which majorities
voided the display of a crèche on the grand staircase of a county
courthouse and upheld the display of a giant menorah outside a
county building. Citing “historical practices and understandings”
going back to the founding, Kennedy said he would have permitted
both displays, and argued that the Establishment Clause should be
read to forbid only government coercion.

NONETHELESS, Kennedy remained open to activist argument. In
Richmond v. Croson, Kennedy joined an O’Connor
opinion striking down a minority set-aside. But he wrote separately
to say that he could not go along with “a rule [advanced by Scalia]
of automatic invalidity for racial preferences” that are not
remedies for unlawful discrimination. Such a rule, wrote Kennedy,
would have required “a break with our precedents that require a
case-by-case test.” To the layman, this may not seem significant –
after all, Kennedy did vote with the majority — but his opinion
was a sign of his unwillingness to adopt a rule of law that would
reduce judicial discretion.

Likewise, in Michael H. v. Gerald D., a
factually bizarre case involving paternity and visitation rights,
Kennedy, while agreeing with Scalia’s opinion for the Court, joined
O’Connor in explicitly refusing to agree with a Scalia footnote
that limited to text and the most specific tradition the sources
judges could draw upon in interpreting the Fourteenth Amendment’s
due process clause (a source of much judicial activism). O’Connor
and Kennedy said that they “would not foreclose the unanticipated
by the prior imposition of a single mode of historical
analysis.”

And then there was Kennedy’s position in Texas v.
Johnson. Like Scalia, Kennedy joined the majority opinion
written by Brennan that extended First Amendment protection to
flag-burning. But unlike Scalia, Kennedy felt compelled to write
separately: Judicial power is difficult in its exercise, no other
branch can wield it, sometimes we must make decisions we do not
like, but we make them because the Constitution compels them, and
this is one of those decisions. This expression of anguish was
totally unnecessary, unless perhaps its writer wished to catch the
eye of the news media. Here was a sign that Kennedy might be
their kind of jurist.

Kennedy was “no clone of Robert Bork,” as the New Jersey Law
Journal
put it, but most press accounts simply lumped him in
the emerging conservative majority — no place for a jurist on the
fast track. Nor did it help that Kennedy was ridiculed inside the
Court. Clerks working for liberal Justices thought him
intellectually mediocre and “clerk-driven” — Kennedy then had
mostly conservative clerks. “Even some of the justices appeared to
give Kennedy low marks,” writes David Savage in his recent book
Turning Right: The Making of the Rehnquist Supreme Court.
Said one, “I understand he gives good speeches.” Kennedy was
referred to as “Little Nino” or “Ninetto.”

IN THE 1989 TERM, Kennedy sometimes looked the part of a Justice
in a conservative cage yearning to break out. He voted more with
Rehnquist (83 percent) and Scalia (84 percent) than any other
Justice, and helped move the Court to the right in major abortion,
capital punishment, criminal procedure, and civil rights cases. He
also authored some excellent opinions. In Metro
Broadcasting
v. Federal Communications Commission, in
which Brennan garnered five votes to sustain a minority set-aside,
Kennedy wrote a dissent joined by Scalia that chastised the
majority for reviving the “deferential approach to racial
classifications” of Plessy v. Ferguson (1896).
And in Missouri v. Jenkins, in which the Court
upheld a court-imposed local property tax increase to fund school
desegregation, Kennedy vigorously dissented, arguing that “a
judicial taxation order is but an attempt to exercise a power that
has always been thought legislative in nature.”

But Kennedy often seemed to hold conservative majorities at
arm’s length. In United States v.
Verdugo-Urquidez, Kennedy joined a Rehnquist opinion
holding that the Fourth Amendment does not apply to the search by
Drug Enforcement Administration agents of property owned by a
foreign national and located in a foreign country; but he wrote
separately to distance himself from the Chief Justice’s suggestion
that the Fourth Amendment did not apply to aliens. Again, Kennedy
would not limit what a judge might later want to do. And in
Holland v. Illinois, a Sixth Amendment case, Kennedy wrote
separately to emphasize that Scalia’s opinion for the Court had not
decided whether the equal protection clause prohibited the
race-motivated use of peremptory challenges to exclude jurors.
Indeed, Kennedy thought that such an equal-protection claim “would
have merit.”

In the 1990 term, Kennedy underwent another growth spurt. By the
numbers his was a conservative performance: He voted more with
Rehnquist (82.6 percent) and Scalia (84.1 percent) than any other
Justice. He joined Rehnquist and Scalia to forge majorities in
desegregation, abortion, and key criminal law cases, and joined
them in dissenting in a pair of Voting Rights Act cases. But in
Minnick v. Mississippi, Kennedy wrote an opinion
for the Court that extended the rule of Miranda to bar
police from questioning a suspect even after he has requested and
seen a lawyer — the lawyer must always be present during
interrogation. And in three cases involving bias in jury selection,
Kennedy wrote Court opinions that drew objections in all three of
the cases from Scalia, and in two of the three from Rehnquist.

In Harmelin v. Michigan, Kennedy joined a
majority in rejecting a claim that a life sentence for a
first-offense conviction of drug possession violates the Eighth
Amendment’s prohibition against “cruel and unusual punishment.” But
in a separate opinion joined by Souter and O’Connor he left open
the possibility that the Eighth Amendment might be invoked to
strike down sentences that are “grossly disproportionate” to the
crime.

Kennedy was distancing himself not only from Bork, but also from
Scalia and Rehnquist. A Wall Street Journal story noted
that “while [he] casts conservative votes on most issues,” he “is
also emerging as the Court’s leading proponent of free speech and
the press” and “at times shows flashes of concern about police
searches and the rights of criminal defendants.” A liberal
free-press advocate said Kennedy was “more solid on our issues”
than anyone else on the Court. A law professor praised Kennedy’s
opinion in Minnick as one that “sounded just like William
Brennan and Thurgood Marshall.”

NOT UNTIL 1991, however, did Kennedy, as the Legal
Times
put it, “come into his own.” While Kennedy agreed less
than in previous terms with Rehnquist (66.7 percent) and Scalia
(62.3 percent), the numbers are not especially suggestive because
there were more disagreements than usual within the Court. Kennedy
continued to cast conservative votes and to reason from
conservative premises. But he also refused to agree with
Rehnquist’s view in Society for Krishna Consciousness v.
Lee that airports are not traditional public forums and,
therefore, not subject to First Amendment speech limitations. In
another case, Kennedy disagreed with a view of standing articulated
by Scalia, writing: “As government programs become more complex and
far-reaching, we must be sensitive to the articulation of new
rights of action that do not have clear analogs in our common-law
tradition.” In both cases, Kennedy declined to embrace limitations
on the judicial role.

And then there were Kennedy’s positively activist roles in
Lee v. Weisman and Casey. In the
Lee case, a principal selected a rabbi to offer a prayer
at a middle school commencement ceremony. He asked the rabbi to
make the prayer non-sectarian. Students were not required to attend
the ceremony nor to stand during the prayer nor even to be
respectful. But Kennedy found the atmosphere “coercive” and
declared a violation of the Establishment Clause. In dissent,
Scalia, joined by Rehnquist, White, and Thomas, reminded Kennedy of
what he had said three years before in Allegheny – that
the Establishment Clause must be construed in light of “government
policies of accommodation, acknowledgment, and support for religion
[that] are an accepted part of our political and cultural
heritage.”

The Kennedy of Allegheny does not sound like the
Kennedy of Lee v. Weisman, who said: “Law reaches
past formalism. And to say a teenage student has a real choice not
to attend her high school graduation is formalistic in the
extreme.” Which is to say: judging is a matter not of applying
rules but of doing what the judge thinks is right in each case.

What the Lee and Casey rulings have in common,
as Robert Bork has written, is that both bespeak, “a willingness to
ignore the actual principles of the Constitution in order to enact
a liberal cultural agenda” that rests on extreme notions of
individual autonomy.

KENNEDY, O’Connor, and Souter each wrote parts of the 60-page
joint opinion in Casey, a twin of Roe that
similarly radiates judicial supremacy. Arrogantly and wrongly, the
opinion declares that the American people see the Supreme Court as
“speak[ing] before all others for their constitutional ideals.”
Kennedy’s part of the opinion is arguably the worst argued and
written. Where Roe v. Wade had found the right to
an abortion in an unenumerated “right of privacy,” Kennedy now
located it in the liberty component of the due process clause, even
though the latter does not define liberty in any substantive way.
Referring to Scalia’s effort in the Michael H. footnote to
limit how judges might interpret the due process clause — to which
he (and O’Connor) had specifically objected — Kennedy said that
approach “would be inconsistent with our law.” Recognizing that
this begged the question of what “our law” is, Kennedy said: “It is
a promise of the Constitution that there is a realm of personal
liberty which the government may not enter.” But as the test of
Kennedy’s argument showed, what the Constitution promises in this
respect is what judges have written into it. “Reasoned judgment” is
what is needed, Kennedy said. “Our obligation is to define the
liberty of all, not to mandate our own moral code,” he wrote in a
convoluted passage. “At the heart of liberty,” he said, “is the
right to define one’s own concept of existence, of meaning, of the
universe, and of the mystery of human life. Beliefs about these
matters could not define the attributes of personhood were they
formed under compulsion of the State.” This is jurisprudence worthy
of Murphy Brown, advancing a definition of liberty so radical as to
suggest that law is impossible and chaos our destiny. At least from
the mouth of Murphy Brown it would have been fiction.

Kennedy went on to say that this notion of liberty encompasses
“the abortion decision.” The question is what else it encompasses.
As Justice Scalia observed in dissent, it might include “homosexual
sodomy, polygamy, adult incest, and suicide.” Writing in the
New York Times, Laurence Tribe praised Kennedy for putting
“the right to abortion on a firmer jurisprudential foundation than
ever before.” Today, the burden of explanation is no longer on
those who would extend the right of privacy to encompass various
“lifestyle” behaviors, but on, as Russell Hittinger of Catholic
University has said, “the defenders of traditional family values .
. . to justify limiting this new understanding of liberty to
heterosexual women seeking an abortion.” Those who battled to
defeat the Bork nomination won more than they ever could have
imagined.

FOR HIS WORK in Lee v. Weisman and
Casey and his performance over the term generally, Kennedy
won high praise in the press. An article saying Kennedy had been
“Blackmunized” led Justice Blackmun to advise his newfound ally,
“Don’t worry. It’s not fatal.” At the annual meeting of the
American Bar Association in August, Kennedy gave a speech affirming
his passage to historical greatness: “We are, of course, bound by
the law and our traditions of logic and reason, precedent,
stare decisis,” but also by “our own sense of morality and
decency.”

History will record where Kennedy’s own sense of morality and
decency, not to mention his own quest for fame, will take him in a
Washington where the Greenhouse Effect is endemic. He could wind up
like another Californian, Earl Warren, whose appointment President
Eisenhower called one of his biggest mistakes. Having reaffirmed
Roe v. Wade, Kennedy could now be confirmed as
Chief Justice by a Democratically controlled Senate. And whether as
the Chief Justice or an Associate, he could lead his colleagues to
embrace the Warren Court practice, as the late Alexander Bickel of
Yale described it, of setting aside the written law in order to
pursue what judges think is “right and good.”
Because no one should mistake that kind of judging for what judging
under the Constitution ought to be, one must hope that Kennedy will
come to realize the folly of a jurisprudence of personal
predilection.


Terry Eastland, our Presswatch columnist, is resident fellow
at the Ethics and Public Policy Center and author of
Energy in
the Executive: The Case for the Strong Presidency (The Free
Press).



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