Political Hay

Kennedy’s Benchmarks

The making of a judicial legislator who once shunned "judge-made constitutional law."

By 7.14.04

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Last summer, in Lawrence v. Texas Supreme Court Justice Anthony Kennedy declared homosexual sodomy to be a liberty protected by the Due Process Clause. By the end of the year, other judges in lower courts relied on his opinion to establish the right to homosexual marriage. This is likely to have a profound and lasting impact on our society.

Most people are aware that Lawrence overruled Bowers v. Hardwick, a nearly identical case decided only 17 years earlier. But most people are not aware that Lawrence also represented a 180-degree turnaround for Justice Kennedy. Kennedy's conversion thus provides a perfect vehicle for exploring the inherent and fundamental problem in allowing judges to declare rights not directly linked to the written words of our Constitution.

Bowers dealt with a Georgia statute criminalizing sodomy. A homosexual challenged the law and in June 1986 the Supreme Court upheld its validity. In so doing, the Court rejected an asserted fundamental right to engage in sodomy, stating "The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution."

Less than one month after Bowers was handed down, in a speech at Stanford University, Kennedy expressed his belief that the case had been properly decided, stating:

Georgia's right to be wrong in matters not specifically controlled by the Constitution is a necessary component of its own political processes. Its citizens have the political liberty to direct the governmental process to make decisions that might be wrong in the ideal sense, subject to correction in the ordinary political process.

Even more interesting than Kennedy's endorsement of Bowers, however, was his advocacy of the idea of judicial restraint. Kennedy made clear his belief that judges should refrain from intruding on the role of the legislature. In this regard, Kennedy felt that "[t]he unrestrained exercise of judicial authority ought to be recognized for what it is: the raw exercise of judicial power." Reflecting the importance he placed on judicial deference to the legislature, Kennedy titled his speech "Unenumerated Rights and the Dictates of Judicial Restraint."

In contrast to many liberal jurists who opposed the idea of "original intent," Kennedy stated his belief that "[t]he constitutional text and its immediate implications, traceable by some historical link to the ideas of the Framers, must govern the judges." He also asserted that "essential rights" in a "just system" were "not coextensive" with "essential rights in our own constitutional system." He went on to state:

One can conclude that certain essential, or fundamental, rights should exist in any just society. It does not follow that each of those essential rights is one that we as judges can enforce under the written Constitution. The Due Process Clause is not a guarantee of every right that should inhere in an ideal system.

In his most forceful statement on the subject, Kennedy, then a law professor and a judge on the Ninth Circuit Court of Appeals, declared:

If the judiciary by its own initiative or by silent complicity with the political branches announces unenumerated rights without adequate authority, the political branches may deem themselves excused from addressing constitutional imperatives in the course of the legislative process. This would be a grave misallocation of power. If there are claims of basic rights or privilege not cognizable by the courts, claims that must be honored if the Constitution is to have its fullest meaning, the political parts of the government ought to address them, and announce aye or nay, so that as the branches most closely linked to the democratic process they are held accountable to it. The courts must never be an accomplice to a regime that erodes the initiative or the power of the political elements in the constitutional system.

Such were Kennedy's views in 1986. The very next year he was nominated and confirmed to the Supreme Court.

Less than two decades later, one wonders what became of Kennedy's professed attachment to the idea of judicial restraint. Not only did he reverse positions and draft the majority opinion declaring sodomy to be a constitutionally protected right, but he also provided the crucial fifth vote saving the judicially invented right to abortion, wrote the majority opinion declaring unconstitutional prayer at high school graduation ceremonies, and invalidated a Colorado constitutional amendment preventing special rights for homosexuals which had been overwhelmingly enacted by the voters of that state.

In fact, by 2003 the evolution of Justice Kennedy was complete -- even its most ardent supporters would be hard pressed to find in Lawrence anything remotely resembling judicial restraint. Indeed, it is hard to imagine that the author of Lawrence and the author of the 1986 speech are the same person.

For example, specifically discussing homosexual conduct, Kennedy declared in 1986 that "[t]he Due Process Clause is not a guarantee of every right that should inhere in an ideal system." In direct contrast, Kennedy wrote in Lawrence that it was "[t]heir right to liberty under the Due Process Clause" which gave homosexuals "the full right to engage in their conduct without intervention of the government."

Given his earlier speech, that Kennedy could ground his ruling in the Due Process Clause is astonishing. He continued: "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice." Remember that in 1986 Kennedy had averred that it was "citizens" who had "the political liberty to direct the governmental process to make decisions that might be wrong in the ideal sense…." But by 2003, liberty now resided solely with the individual. Judicial restraint, indeed.

Remarkably, even though he supported it at the time, Kennedy chided the Court for its decision in Bowers, writing that in the past half century there was an "emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex" and that this "emerging recognition should have been apparent when Bowers was decided." But if this so-called "emerging recognition" was apparent in 1986 it seems that Kennedy himself missed it.

Once upon a time, judges understood that changes in public opinion had nothing to do with the interpretation of the Constitution. More than 100 years ago, Justice Cooley of Michigan wrote that a court "which should allow a change in public sentiment to influence it in giving to a written constitution a construction not warranted by the intention of its founders, would be justly chargeable with reckless disregard of official oath and public duty; and if its course could become precedent, these instruments would be of little avail."

Today, however, contrary to the intent of the Founders and the express provisions of the document itself, our Constitution is routinely amended by nothing more than judicial say-so. Thus, the Constitution now means nothing more or less than what five judges of the Supreme Court say it means. And if five justices change their minds, they also change the Constitution.

That being the case, one could be forgiven for wondering why we even bother having a written Constitution -- why not just check the latest opinion of the Supreme Court? For if our courts are free to disregard history, tradition, and even the words of our Constitution, the document serves little purpose. As stated by Representative John P. Stockton in a congressional debate in 1871:

Constitutions are chains with which men bind themselves in their sane moments in order that they may not die by a suicidal hand in the day of their frenzy.…[I]f they can be altered or amended except by the will of all, expressed as directed therein, they are of no more value than the paper on which they are written. Nay, sir, they are worse than useless; for they drug the sentinels of liberty while the freedom of the country is being destroyed. They lead us to lean on a broken reed, and our fall will be heavy.

As late as 1986, even the future Justice Kennedy understood this. Perhaps it is time for Americans to remind Kennedy and others who feel it is their province judicially to amend our Constitution that "the Bill of Rights, including the Ninth Amendment, and the amendments after the Civil War, spacious as are some of their phrases, were not intended to relieve the political branches from their responsibility to determine the attributes of a just society." We might also point out that "If courts adjudicate claims by premises that are essentially political, they forfeit their right to independence, to the respect due a neutral arbiter, and to lifetime tenure."

Those words should sound familiar to Justice Kennedy -- he wrote them.

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About the Author

Mark M. Trapp is a lawyer in Chicago.