The Current Supreme Court Term, and the Pivotal Role of "Swing" Justice Anthony Kennedy

By EDWARD LAZARUS
Thursday, Dec. 06, 2007

This promises to be another very significant year at the Supreme Court. The Justices have already agreed to decide a host of important issues: Can Congress preclude the detainees at Guantanamo from challenging their imprisonment through habeas corpus? Can the government require voters to present government identification at their polling places? Is it cruel and unusual punishment to carry out the death penalty using a method of lethal injection that may inflict unnecessary pain?

Before the Term ends, the Justices will likely add a few more blockbusters to the list, as occurs almost every year. And as has happened frequently over the last 20 years, many of the especially noteworthy and controversial cases will surely be decided by a 5-4 vote, as the Court splits predictably along ideological lines.

But if weighty cases and deep divisions are nothing new at the Court, this year nonetheless does present at least one interesting new twist. To an extent that may be unprecedented, the Justice with the most power on the Court - the one who will cast the swing vote in all, or nearly all, of the most controversial cases - has become the subject of intense, unrelenting derision from across the jurisprudential spectrum.

The Harsh Criticism Justice Kennedy Has Faced From Across the Ideological Spectrum

If the commentary is to be believed, the Court's pivotal justice, Anthony Kennedy, must be the most pompous, self-aggrandizing, and unjustifiably self-confident jurist in Supreme Court history.

This verdict comes to us not merely from left- or right-wing partisans disappointed by the ideologically-diverse causes (from gay rights, to the ban on partial birth abortion) that Kennedy has championed. In addition to these usual suspects, mainstream commentators - usually circumspect in their criticisms of the Court - are currently engaged in a veritable orgy of Kennedy-bashing.

To take but a few examples: Jeffrey Rosen, the widely-read Legal Affairs Editor of The New Republic, lambasted Kennedy earlier this year for being so sanctimoniously self-absorbed that he "seems most at home when he is lecturing others about morality." In the same vein, New Yorker staff writer and CNN analyst Jeffrey Toobin spends a good chunk of his new book excoriating Kennedy for copious sins, ranging from his allegedly self-important, cliché-ridden, and excessively sweeping opinion-writing style, to the overly grandiose manner in which he has decorated his chambers at the Court. Meanwhile, noted journalist Jan Crawford Greenburg's recent book, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court, is scarcely more charitable.

I must confess to having been an early and not infrequent Kennedy critic myself. But at some point, enough is enough. There is plenty to criticize about both Kennedy's jurisprudence and his style. But the same can be said about many of the Justices, present and past. The time has come to regain some perspective on Kennedy and resist the now-fashionable view that the Court's pivotal (and thus most powerful) member is best viewed as a dangerous egomaniac.

The Need for More Balance in Our Assessment of Justice Kennedy

Let's take it as a given that Kennedy has a somewhat bloated and highly romantic view of the judicial role - and that he relishes the exercise of judicial power, and sometimes does so by substituting his political judgments for those of the elected branches. Let's further admit that Kennedy's attempts at eloquence often produce overripe prose that is easily ridiculed. And let's further concede that his personal style tends towards ostentation.

But let's not pretend that such foibles - jurisprudential and personal - are unknown to judicial heroes of the right and the left alike. Justice William Brennan had a pretty darn expansive view of the judicial role, and no reticence at all about interpreting laws to suit his policy preferences. Clarence Thomas has a notably arrogant jurisprudence: In giving no deference to the Court's precedents, he is effectively saying that the historic views of other justices should carry no weight, compared to his own vision of the law. Yet both these Justices have significant fan bases, while Kennedy seems to have virtually none.

On the personal side, moreover, lots of justices have had far more difficult personalities than Kennedy's. Thurgood Marshall was downright ornery. William O. Douglas used to fire his clerks for sport. Byron White could be a prickly pear. Yet none received the barrage of ad hominem attacks that Kennedy suffers.

Kennedy also has undeniable virtues as a justice. He is conscientious, hardworking, and genuinely interested in hearing and weighing opposing points of view. He even changes his mind about things from time to time, which some see as weakness but, in my view, actually shows a laudable willingness to learn and grow over time.

Kennedy's substantive jurisprudence also has admirable qualities. Although I don't always agree with Kennedy's views on issues related to race, it would be difficult to deny that he is deeply committed to a vision of racial equality, and cares about advancing this constitutionally-mandated goal. Kennedy's vision may lead him to oppose affirmative action in ways that strike me as wrong-headed, and to view other civil rights issues in ways that infuriate conservatives, but Kennedy is striving to work through this vexing issue in a principled way - and that elevates him above several of his colleagues.

Much the same could be said about Kennedy's First Amendment views, or his conception of federalism. The results he reaches can be infuriating at times to liberals and conservatives alike. With respect to the First Amendment, for example, Kennedy's broad conception of free speech has led him to strike down prohibitions on flag burning (a liberal result) as well as to sharply limit campaign finance reform (a conservative one). But in both this area and in his states' rights opinions, Kennedy is doing his best to work from a principled conception of what the Constitution means. That's praiseworthy.

Is the Kennedy-Bashing Connected to an O'Connor Nostalgia?

It's not altogether clear why the commentariat has lately tended to exaggerate Kennedy's flaws while diminishing his virtues. Part of the answer seems to be a nostalgia (especially on the left) for the now-retired Justice Sandra Day O'Connor, who previously held down the center of the Court and controlled most of the 5-4 decisions.

To be sure, there are sharp contrasts between Kennedy and O'Connor. In particular, while Kennedy is prone to advancing sweeping pronouncements in his opinions, O'Connor often deployed an incremental, case-by-case approach to large constitutional questions. She also appeared self-consciously to be steering the Court's jurisprudence into harmony with the broad sweep of public opinion, while Kennedy is more prone to take positions that are at odds with public sentiment.

However, I am hard-pressed to see why these distinctions make O'Connor a better judge than Kennedy or how they explain the hagiography surrounding O'Connor, which seems to match the opprobrium leveled at Kennedy.

O'Connor's jurisprudential style was in many ways at least as self-aggrandizing as Kennedy's. Sure, she wrote narrow opinions. But they were opinions completely dependent on her individual application of highly-subjective legal tests. For example, her views on abortion rights (and ultimately the Court's, as she was a swing vote) were entirely dependent on her view of whether a challenged regulation imposed an "undue" burden on a woman's right to choose. Similarly, whether government support for religion violated the Establishment Clause depended in large part on O'Connor's personal view of whether the government could be seen as "endorsing" the religious practice at issue.

In effect, O'Connor's jurisprudential style reduced an awful lot of important questions to her own personal judgment, as well as her sense of the public's mood. Kennedy, by contrast, is endlessly struggling (albeit with mixed success) to subjugate his personal views to some larger principle, and he does so in a way that is largely independent of the vicissitudes of public opinion.

Both approaches to judging have their virtues and vices. But surely this is not the stuff from which unalloyed heroines and villains are made. Thus, it is high time to change our view of Kennedy, moving our assessment from the realm of caricature to the realm of skeptical reality.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.