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The Pivotal Role Of Justice Anthony Kennedy:
Why The Supreme Court's Romantic May Only Become More Influential Over Time


Thursday, Aug. 07, 2003

Last week, President Bush went out of his way last week to denounce gay marriage. In light of this, Justice Anthony Kennedy's term-ending opinion in Lawrence v. Texas, striking down that state's ban on homosexual sodomy, looks all the more remarkable.

It is not the result that the opinion reached that is so striking; it invalidated a clearly bigoted law. Rather, what makes the opinion stand out is the rhetoric and reasoning Justice Kennedy's opinion employed in bestowing constitutional significance and protection to individual choices of sexual preference.

In contrast to President Bush - and most public figures, it would appear - for Kennedy, the moral issue in the Texas case was not whether homosexuality is good or bad. Rather, Kennedy seemed to view the Texas case as a moral test for American government - a test of whether America's constitutional tradition truly stands for every individual's freedom to define his or her personal destiny. Even more pointedly, Kennedy seemed to view Lawrence as a moral test for the Court itself: Is its paramount role to protect that very freedom of choice?

Kennedy's opinion in Lawrence contains many stirring passages, but none is more stirring or more telling than its penultimate paragraph. There, Kennedy wrote of those who drafted and ratified the Constitution's due process clauses: "They know times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

When this history of this past term is written, scholars will no doubt emphasize, as they should, that it reflected Justice Sandra Day O'Connor's total dominance of the Court. Alone among the justices, she was in the majority in every major case, and her views dominated most of them.

But it would be a shame if, with that emphasis, it was not also recognized that this term was highly revealing about another pivotal member of the Rehnquist Court, Justice Kennedy. He, too, is a potential "swing" vote, able to construct a five-Justice majority on issues on which he feels strongly. And while O'Connor's jurisprudence has steadied into a relatively predictable pattern, his may yet be developing, in new and exciting respects.

Justice Kennedy As Conservative, and As Romantic

In profiles of Justice Kennedy, he is frequently portrayed as an agonizer - someone who frets over the big cases, pacing back and forth in the small flagstone courtyard outside his chambers until he finally comes to peace with a position. What these profiles miss, however, is the nature of the tug of war taking place inside Kennedy's head and heart.

I believe that it is not merely a tug of war between two factions on the Court, or two possible results in a given case; it's deeper than that. It is a philosophical tug of war, I would venture, between Kennedy's innate conservatism and what I like to call the "romantic" view of the Court and the constitutional system over which it presides. If this Term is any guide, the romantic inside Kennedy is coming increasingly to the fore.

What do I mean when I say Kennedy is a romantic? I mean that, at base, he has a deep emotional belief in the centrality of the Court's role as a guarantor of real life justice.

When my high school civics class took up the topic of the Supreme Court, the teacher handed out a series of pamphlets, each summarizing one of the Supreme Court's landmark decisions. There was a pamphlet on the landmark desegregation case, Brown v. Board of Education; one on the right to counsel case, Gideon v. Wainwright; one on the case establishing the one-person-one-vote standard, Baker v. Carr; and one on the decision banning prayer in public schools, Engle v. Vitale.

But the pamphlet I remember best discussed the Court's 1958 decision in Cooper v. Aaron. There, in a unanimous opinion signed individually by all nine justices, the Supreme Court demanded that the school board of Little Rock Arkansas comply with the Supreme Court's decree in Brown and desegregate the Little Rock Central High School.

The Court's opinion in Cooper was not meant just for Little Rock school officials, or for Arkansas Governor Orville Faubus, who was resisting Brown. It was also meant, more broadly, for all the members of the South's political leadership who were either foot-dragging on desegregation, or resisting it entirely, in open defiance of the Court.

As is well known, Chief Justice John Marshall's seminal opinion in Marbury v. Madison established the principle of judicial review, but in a circumstance in which the Court's opinion had little practical effect. The Court in Cooper repeated Marshall's proclamation of supreme judicial authority - "It is emphatically the province and duty of the judicial department to say what the law is."-- and also made clear that these words had weight and force. The Court would not just say what the law was; it would insist on its enforcement.

Only a few months before I read the pamphlet on Cooper, in July 1974, the Nixon tapes decision came down. There, the Court invoked these same words from Marbury and Cooper to force the President to turn over to the Special Prosecutor the incriminating Oval Office tapes that would ultimately force his resignation. The opinion was a singular achievement: Issued by a unanimous, Republican-led Court that included three Nixon appointees, it demanded that the nation's Republican President turn over the smoking guns incriminating him as a liar and probable felon.

The romantic view of the Court holds that it is an institution largely above politics, throwing down moral thunderbolts that reshape American life. Its decisions do not merely resolve disputes. Far more than this, they uphold shining ideals like justice, fairness, and the rule of law. That was the view of the Cooper Court, and the Nixon tapes Court. It is also the view, I believe, of Justice Anthony Kennedy.

Justice Kennedy's Rights Decisions Evidence His Romanticism About the Court

Such romanticism inhabits many of Justice Kennedy's most significant opinions across a broad spectrum of issues.

The most obvious examples come from Kennedy's opinions interpreting the due process clause and the scope of constitutional liberty. As is evident from the passage quoted above, Kennedy's opinion in Lawrence, championing the Court's mission to give broad and modern meaning to the Framer's ideals, sounds more like the great liberal Justice William Brennan than Brennan often did himself.

The same might well be said of Kennedy's contribution to Planned Parenthood v. Casey. There, the Court's opinion re-affirmed Roe v. Wade and a woman's right to choose. Kennedy's high idealism shines through from the opinion's very first line, where he declared, with the grandiosity characteristic of a romantic, "Liberty finds no refuge in a jurisprudence of doubt."

The doubt Kennedy was concerned about was the doubt about whether Roe was still good law. Accordingly, his opinion centered on the idea of stare decisis - the Court's obligation to defer to its own past precedents. In stressing this concept, Kennedy emphasized the Court not just as a collection of disputes resolving judges, but rather as a hallowed institution that persists over, and transcends, time.

Even Kennedy's Federalism Decisions Reveal His Romantic Bent

Kennedy's federalism jurisprudence might be thought to evidence his divided soul - marking not his romanticism, but his conservatism. After all, Kennedy tends to vote along the lines of the Court's conservatives when it comes to the federalism cases. But while his votes may be conservative, his approach remains romantic.

Kennedy's writing on federalism sounds two main themes. The first is that the Court, and the Court alone, has the constitutional responsibility for allocating power among the three co-equal branches of government, and between the states and the federal government. The second is that, in carrying out this responsibility, the Court is carrying the torch of the geniuses who designed the American experiment in democratic government.

Nothing about federalism is doctrinal or routine for Kennedy. In his view, this constitutional physics at the highest level, and he's Einstein's disciple. So it is that he wrote in the case striking down federal term limits that "[t]he Framers split the atom of sovereignty. it was the genius of their idea that our citizens would have two political capacities, one state one federal, each protected from incursion by the other. . . . It is appropriate to recall these origins, which instruct us as to the nature of the two different governments created and confirmed by the Constitution."

Such passages call to mind Pericles' "funeral oration" - the ancient Athenian equivalent of the Gettysburg Address. There, the Athenian statesman called upon the citizens of Athens to "look upon their city and fall in love with her." Kennedy sees his role not merely of protecting the Constitution, but also of honoring it, a more consecrated task.

The Court's Last Term, in Particular, Showcased Kennedy's Romanticism

Plainly, Kennedy is in love with the American system and the Court's role in it. And over the Court's most recent term, that love affair was evidenced over and over again.

In Miller-El v. CockrelI, Kennedy wrote the Court's opinion protecting a black defendant (in a death penalty case no less) from conviction by a jury from which blacks had been unconstitutionally removed. In Chavez v. Martinez, Kennedy wrote a dissent that would have extended constitutional protection to a badly injured criminal suspect deprived of medical treatment during a police interrogation. And in dissent in Grutter v. Bollinger, Kennedy affirmed the constitutionality of affirmative action in higher education. And significantly, in each instance, Kennedy showed himself to be utterly enthralled with the ability of the Court to declare the moral good.

For those who have a sanguine view of judicial power, and who trust the court to adjust the nation's moral compass, the triumph of Kennedy's romantic side is a hopeful sign.

But for those who view judicial power with some skepticism, and are especially concerned about the expanding judicial powers exercised by the current Court, this development may cause concern: A Court so enamored of its own role, will only be inclined to expand it. And Kennedy, as the least controversial pick for Chief among the five current conservative Justices, may have the chance to pursue that very agenda.

Edward Lazarus 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.

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