Friday, October 05, 2018

Justice Kennedy's Writing Style and First Amendment Jurisprudence

by Michael C. Dorf

Today I am participating in an all-day conference at Georgia State Law School called Reflections on Justice Kennedy. As you can see from the conference website, there's a great lineup, although unfortunately the journalists (Nina Totenburg, Adam Liptak, and Emily Bazelon) all had to pull out to stay in DC to cover the latest on the Kavenaugh nomination. Organizer (and DoL blogger) Eric Segall put the panel together months ago--before we had learned that Justice Kennedy was retiring--so the timing is simply bad luck. Anyway, the rest of us will do our best to keep it lively. The day starts at 8 a.m., and proceedings will be streamed live here if you want to tune in. It will also be recorded by CSPAN for possible future airing.

From 10:15 - 11:30 I'll be filling in for Bazelon on a panel on the substance and style of Kennedy's prose, along with Jamal Greene and Eric Berger. With Eugene Volokh, I'll be talking about Justice Kennedy's First Amendment jurisprudence from 11:30 am - 12:45 pm. Professor Segall will moderate both of the panels I'm on. Here I'll offer a preview of my remarks.

(1) Prose

Justice Kennedy's prose style has been the frequent object of criticism, some of it extremely harsh, as when Justice Scalia in his dissent in Obergefell v. Hodges wrote that if he ever joined an opinion with the line with which Kennedy's majority opinion begins he (Scalia) "would hide [his] head in a bag." It is not entirely clear to me what inspires this sort of response. Sure, Kennedy's prose style can be windy or even pompous, but so what? Justices and scholars are not generally literary critics. Something else must be going on.

The most obvious explanation is displacement. Scholars and justices who take aim at Kennedy's prose are likely irked by the outcome of the cases at issue. And the more strongly they disagree on the substance, the more likely they are to take aim at the prose. Thus, it's hardly a surprise that Scalia's most biting criticism came in the sorts of cases in which he most strongly disagreed with Justice Kennedy, especially about gay rights and abortion -- as when in Planned Parenthood v. Casey, Scalia mockingly used quotations from the lead opinion (co-authored by Kennedy) as headings in his dissent. Because I'm speaking at a conference on Justice Kennedy rather than on his critics, I won't dwell any further on the reactions to Kennedy's style. Instead, I'll make a few further observations about the style itself.

Some of Kennedy's most memorable opinions are notable in two respects: (a) They include soaring rhetoric; and/or (b) they depart from or ignore the standard doctrinal formulae.

There is no necessary logical connection between these two features of various Kennedy opinions. One can write a by-the-letter doctrinal opinion in either a flat or lyrical style, and one can write an outside-the-doctrinal-box opinion in a variety of rhetorical styles as well. Kennedy happened to combine in one justice both a tendency to ignore formal doctrinal categories and a tendency towards soaring rhetoric, but that is only one of four possible squares in the relevant 2x2 matrix.

In our pre-conference discussion of this point, Professor Berger agreed with the foregoing diagnosis but went on to suggest that it is somewhat easier to write more poetically if one doesn’t follow the pre-existing doctrinal formulae. I in turn agree with that. It would indeed be a challenge to write poetry about subpart c of prong 2 of a multi-part test.

But I also want to suggest that in one way the distinctive features of Justice Kennedy’s writing pulled in opposite directions. For many years, Kennedy was not just a jurist but also a teacher. Even after he left Sacramento for Washington, DC, he continued to teach in a summer program in Salzburg, Austria that was run by McGeorge School of Law. He also enjoyed talking to groups of middle school, high school, and college students who visited the Supreme Court or whom he encountered in other settings. His speeches on such occasions were typically a mix of patriotic pablum and genuine wisdom. He frequently made the point that because the justices don’t stand for election, the legitimacy of their decisions rests on their opinions' persuasiveness. Perhaps that's why he sometimes ignored the technical language of the law in just those cases in which he thought it most important to reach and, so much as possible, to persuade, the general public. Laws like Colorado’s Amendment 2 in Romer v. Evans are "a denial of equal protection of the laws in the most literal sense," Kennedy wrote for the Court. He thereby confused constitutional lawyers trying to reconcile the ruling with the cases identifying and articulating various tiers of scrutiny but at the same time made sense to a great many laypeople.

Note, however, that if Kennedy’s tendency to ignore formal doctrinal categories can be understood as an effort to speak directly to the public, those aspects of his writing style that occasioned the most ridicule from his critics—especially the baroque syntax—undercut the effort. "Liberty finds no refuge in a jurisprudence of doubt."The instant case involves liberty of the person both in its spatial and more transcendent dimensions."  The line that led Scalia to urge his colleagues to bag their heads: "The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity." One need not go quite so far as Scalia in comparing this sort of language to "the mystical aphorisms of the fortune cookie" to think, as I do, that prose that sometimes reads as though it were inexpertly translated German poetry impedes rather than promotes popular understanding of the Court’s work.

Why, then, did Justice Kennedy do it? I don’t have a firm answer, but I have a hypothesis. Kennedy is and was a sentimental patriot. His touchstones are the great examples of American rhetoric: the Gettysburg Address; JFK’s Ask Not; King’s I Have a Dream. When Justice Kennedy got choked up about a case or a legal principle, he reached into his bag of highbrow political American rhetoric. Sometimes it worked: "The framers split the atom of sovereignty" is a terrific metaphor. But mostly I think Kennedy would have better achieved his noble goal of connecting with non-specialists if he had drawn on the American tradition that values plainspokenness: the Americana of Mark Twain, Hemingway, and (in politics) of Harry Truman.

(2) First Amendment

For an extremely useful summary of the doctrinal pattern of Justice Kennedy's free speech jurisprudence, I highly recommend the essay Erwin Chemerinsky wrote on SCOTUSblog after Kennedy announced his retirement. I can't improve on the opening paragraph, so I'll just quote it in full:
Justice Anthony Kennedy will be remembered as a staunch advocate of freedom of speech, but his actual record is more complicated than that. Kennedy wrote the majority opinions, or joined them, in some of the most important cases protecting free speech in the last 30 years. Yet, he also wrote, or was part of, decisions limiting the free speech rights of government employees, students and prisoners. Perhaps the easiest way to summarize Kennedy’s free speech jurisprudence is that he generally was on the side of freedom of expression except when the institutional interests of the government were involved.
That gets the cases just right, but it leaves open the question of what drove Justice Kennedy in free speech cases. Unlike Justice Brandeis, Kennedy did not appear to value free speech because of its special contribution to democracy. Indeed, his most-criticized opinion--Citizens United v. FEC--is problematic precisely because his theory of free speech seems so disconnected from the practical impact on the workings of the democratic process of a broad conception of campaign finance as speech.

What one mostly sees in Citizens United and more broadly in Kennedy's First Amendment jurisprudence is a general commitment to libertarianism or--what amounts to the same thing--skepticism of government as applied to speech, press, and religion. That observation, I think, goes a long way towards making sense of Kennedy's free speech jurisprudence.

To be sure, Kennedy denied that he was just importing general libertarian principles into the First Amendment. He understandably pointed to the constitutional text. For example, in a 2011 commercial speech case, he batted away a charge of Lochnerizing with this memorable line: "The Constitution 'does not enact Mr. Herbert Spencer’s Social Statics.' Lochner v. New York (1905) (Holmes, J., dissenting). It does enact the First Amendment."

That's catchy but not really persuasive, given that in other contexts Kennedy quite rightly resisted efforts by some of his conservative colleagues to undercut or eliminate recognition for unenumerated rights. The text of the First Amendment mostly seems like it served as a convenient hook for Kennedy's broader libertarianism. But he did not have a thoroughgoing First Amendment-specific theory that drove him.

Libertarianism also explains Kennedy's otherwise puzzling approach to the Establishment Clause. From quite early in his tenure on the Court, Kennedy argued that in place of a test (championed by Justice O'Connor) that focuses on whether the government has endorsed religion, the Establishment Clause should focus on whether the government has impermissibly coerced participation in religion. Although Kennedy occasionally thought the answer was yes (as in Lee v. Weisman, the graduation prayer case), more commonly this test was more permissive of government policies favoring or facilitating religion. Kennedy's approach was puzzling, because the Free Exercise Clause, not the Establishment Clause, seems like the natural home for a principle barring religious coercion. What the coercion test has going for it is that it fits well with libertarianism.

Careful readers will note that I have qualified my account of Justice Kennedy's First Amendment jurisprudence with words like "mostly." I believe he was mostly driven by general libertarian principles but that there's one First Amendment-specific principle that he also held dear. To illustrate it, I'm going to break with my customary practice of not revealing things that Justice Kennedy said to me in my capacity as clerk -- because I don't think this story divulges anything embarrassing or properly confidential.

During my clerkship year, the Court was considering a case that presented the question whether Hare Krishnas had a free speech right to give out pamphlets and solicit donations in the NYC-area airports.  Justice Kennedy's concurring opinion would have treated the mall-like areas of airports as public fora in which speech receives presumptive protection. He wanted to provide greater protection to the Hare Krishnas and other airport speakers than the majority did. Before the case was argued, per his custom in the more interesting cases, Justice Kennedy gathered us law clerks in his chambers to talk it through. One of my co-clerks at one point said that people in airports are tired, they're stressed, they're just trying to get wherever they're going on time, and they don't want to be annoyed by someone handing out pamphlets or soliciting funds. Just Kennedy said in response: "The purpose of the First Amendment is to annoy people." It was clear that he was only half-joking.

If there is a distinctive principle beyond applied libertarianism that emerges in Kennedy's First Amendment jurisprudence, I think it's that: the right to annoy. Justice Kennedy believes in civil discourse among ordinary people-- peer-to-peer in tech language--even as he disapproves of government efforts to civilize our discourse.

I can't say I entirely agree with how Justice Kennedy applied his right-to-annoy principle. For instance, his dissent in Hill v. Colorado and his joining in Scalia's separate opinion in McCullen v. Coakley treat anti-abortion protesters as though they are merely seeking to have a polite discussion with women seeking abortions. Justice Kennedy seems to me in these cases to have lost sight of the line between annoying and intimidating.

That said, in general I cannot help but admire the idea of a constitutional right to annoy. I don't share Justice Kennedy's broad commitment to libertarianism, but I think we would be better off if we recognized a right to annoy. Ironically, by doing so we might even end up finding each other less annoying.