Saturday, June 16, 2007

Jeffrey Rosen on Justice Kennedy

The cover story of the New Republic (available here, although you have to register for free to read past the first page) is what can only be described as an attack on Justice Anthony Kennedy by Jeffrey Rosen. The tone and content are so over the top that one wonders whether Rosen believes that Kennedy personally harmed Rosen in some way. Rosen's brief against Kennedy amounts to the following:

1) Kennedy is the most activist of the current Justices in the sense that he votes to hold laws unconstitutional more often than any other;

2) Kennedy's writing style is florid;

3) Kennedy's conception of human psychology owes more to great works of literature than to interactions with real people;

4) Kennedy professes to care about dialogue but really only wants others, including schoolchildren, to hear what he has to say and agree;

5) Kennedy merely poses as an open-minded agonizer so that lawyers and his colleagues will come to him as supplicants;

6) Kennedy's form of moderation is worse than Justice O'Connor's was because she wrote split-the-difference opinions that had no broad effect, whereas Kennedy writes in broad abstract terms.

Summarizing Rosen's argument in this way, however, does not convey the utter contempt that Rosen apparently has for Kennedy, which I find perplexing to the point of sadness. Rosen's a very smart guy and his legal scholarship is quite creative. In his incarnation as a public intellectual, he invariably stakes out what we might call a New Deal liberal position, highly skeptical of judicial review for liberal as well as conservative causes. That's a perfectly respectable position but Rosen has a bit of the very arrogance he attributes to Justice Kennedy. He, Rosen, is so sure that his view of jurisprudence is correct that he thinks that any reasonably smart person who takes a different view must be trying to pull a fast one. Thus, Rosen thinks that Kennedy's belief in the utility of courts must simply be a mask for aggrandizing his own power. It doesn't seem to occur to Rosen that Kennedy might have good reasons for his views, reasons of the sort that Ronald Dworkin and others have articulated at length. It's fine to disagree with their arguments, and I think Rosen and the conventional wisdom are right to find some of Justice Kennedy's rhetoric a bit over the top, so I'll give him point number 3. But on the substantive points, what Rosen contends is some sort of character flaw is simply a jurisprudential disagreement. To wit:

1) Kennedy is the most activist Justice because he joins the liberals in striking down laws on individual rights grounds and the conservatives on federalism grounds (and in affirmative action cases). One can disagree with any of those decisions, but Kennedy's colleagues are not less activist; they're just more predictably ideological.

2) As I said, I'll give Rosen this one. Kennedy is prone to flights of rhetoric. But note that this hardly makes him unique in the history of the Court.

3 -- 5) Rosen makes his claims about Kennedy's psychology and motives based on a few statements and quotations. Moreover, as for the claim that Kennedy merely poses at agonizing, Rosen himself cites cases in which Kennedy changed his mind after a conference vote, thus contradicting himself. In any event, Rosen's assumption that the key to understanding Justice Kennedy is psychoanalytic rather than jurisprudential is itself arrogant. One might equally probe Rosen's own childhood and early professional associations for the sources of his views.

6) Many constitutional lawyers and scholars think that Kennedy's jurisprudence---which seeks to reconcile various decisions by reference to abstract principles---is more appropriate than O'Connor's split-the-differencism. These are two positions in a jurisprudential debate. The fact that Rosen supports one view (Sunstein's) while Kennedy takes another (that of Dworkin and others) is hardly grounds for sweeping condemnation.

This post may be read as the inevitable defense of a former law clerk against an attack on his one-time boss, and at some level it is. But I want to be clear that I have no problem with strong disagreement with Justice Kennedy's decisions or approach. I often find myself disagreeing with opinions Justice Kennedy writes or joins---especially this Term. However, there's a difference between fair-minded criticism and personal attack. Rosen crosses that line.