Justice Kennedy's Constitution and Why We Need It Now More Than Ever

By Eric Segall

There has been internet speculation that Justice Anthony Kennedy might retire in June, giving President Trump another Supreme Court vacancy to fill. Some Court watchers even believed that Trump’s selection of Neil Gorsuch to replace Justice Scalia was partly motivated by the hope that the choice would convince Kennedy he could retire with the Court in good hands (because Gorsuch clerked for Kennedy). On Tuesday of last week, however, it was reported that Kennedy hired a law clerk for the 2018 Term, dampening the speculation just a bit. Nevertheless, Kennedy is eighty years old, and I too have been told by some folks who may be in a position to know that he is considering stepping down (no one associated with this Blog). Therefore, it might be a good time to review the career of our most senior (in terms of longevity), our most important (in terms of influence), and our most fiercely independent (in terms of jurisprudence), Justice.

Pick just about any important non-criminal area of constitutional law that has been litigated during Kennedy’s almost 30 years on the bench and you will find him in the majority. There have been four decisions in the history of the Supreme Court on the side of gay rights, and Justice Kennedy has authored them all. He was one of the authors of the plurality opinion setting forth the “undue burden” test for abortion, which is still the governing law of the land. He was in the majorities in decisions forbidding prayers at high school graduation ceremonies and football games but he also wrote the decision allowing mostly Christian prayers at state legislative sessions. He voted with the majority to allow states to provide significant government aid to religious schools, to construe the free exercise clause as not providing religious exemptions to generally applicable laws, and to read the Religious Freedom Restoration Act broadly in Hobby Lobby. He wrote the Court’s last decision on affirmative action and he is the author of Citizens United as well as Boumedienev. Bush. He was also in the majority in Bush v. Gore. I could go on and on.

In terms of numbers, the data are clear that Justice Kennedy is our most important Justice. Since Justice Kagan came to the Court in 2010, Kennedy has been in the majority of 5-4 cases 84 percent of the time. The other Justices are in the 45-61 percent range. From 1988, when  he was first appointed, through 2016, Kennedy has been in the majority of 5-4 cases a staggering 75% of the time. On most disputed legal questions that get to the Supreme Court of the United States, if you get Justice Kennedy’s vote, you will prevail. The appointment of Neil Gorsuch, who will likely be more conservative than Kennedy, is not likely to change this calculus.

These numbers, however, do not begin to tell the entire Justice Kennedy story. Although a comprehensive account of Kennedy’s career would obviously require a book, I think two key aspects of his contributions should be highlighted at this Trumpian time. First, as many have observed, there is a strong libertarian aspect to Kennedy’s individual rights decisions. On gay rights, free speech, abortion, and the separation of church and state, Kennedy seems to embrace a strong notion of individual liberty.

Although conservatives are often driven to distraction by Kennedy’s rhetoric, this famous paragraph from Kennedy’s opinion finding a constitutional right to engage in same-sex consensual sodomy sums up his philosophy:

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.

I don’t want to make too much of this but, as Dalia Lithwick pointed out last week, in light of the current uncertainty regarding our President, a key Justice who believes in strong notions of individual freedom and the rule of law could potentially play an important role in future legal controversies, especially if that Justice is at the twilight of a long and distinguished career.

The other aspect of Justice Kennedy’s jurisprudence that I think is so important, regardless of whether one agrees or disagrees with the results he has advocated, is his relatively strong anti-formalism (for a Supreme Court Justice). Most Justices, when they author important constitutional law decisions, write in a “the law made me do it” manner. This kind for formulaic reliance on cold legal rules, however, often hides the true rationales for preferred results based on the Justices' values writ large.

Justice Kennedy, although speaking formalistically at times, often lays out his priors for all the world to see. The paragraph quoted above, for example, doesn’t come from precedent or wooden text but from Justice Kennedy’s heart. This type of honesty is to be commended. The role of a judge is to judge, not pretend hard cases can be decided based on pre-existing legal jargon and doctrine. One gets the feeling that, in big cases, Justice Kennedy is talking directly to the American people, not to legal scholars. That is unequivocally a good thing, especially as our President seems to be taking a similar tack with his awful twitter habit.

Most people today don’t remember that in the 1990’s the question of term limits for members of Congress was a huge and divisive issue. When a case on the question finally reached the Supreme Court, Justice Stevens’s opinion for the liberals disallowing term limits recited page after page of history and precedent, as did Justice Thomas’ dissent for the conservatives, reaching the opposite conclusion based on largely the same indeterminate materials. Justice Kennedy, the key fifth vote, wrote a short concurrence arguing primarily that the nationally elected Congress needed to have one uniform identity in order to fulfill important functions in our federal system. Agree or not, Justice Kennedy identified for all to see the value judgments that motivated his vote and did not pretend preexisting positive law solved this difficult and important national issue.

Our country’s future is at best uncertain and it is less than clear whether the Republicans in Congress will stand up to our President if or when the chips are down. We may well need the Supreme Court to play that role. If so, the odds of avoiding a a true constitutional crisis go up as long as Justice Anthony Kennedy is on the bench. I hope he sticks around.