The American Spectator

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.”