Is it the Greenhouse Effect that has turned Anthony Kennedy into the Harry Blackmun of our time — that is, a Justice who “grew”?
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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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