The Tempting of Justice Kennedy - The American Spectator | USA News and Politics
The Tempting of Justice Kennedy

This essay first appeared in the February 1993 issue of The American Spectator.

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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