Justice Kennedy’s mark

Anthony Kennedy isn’t likely to get the moment in the sun sometimes granted to an outgoing or departed Supreme Court Justice. Two factors conspire against it. First, Kennedy was admired by neither the left nor the right. Second, the battle over confirming his successor has already commenced, even though no successor has been nominated. The intensity of the battle doesn’t leave much energy for Kennedy appreciation (or condemnation).

Jack Goldsmith, though, has written an admiring piece in the Washington Post. Regardless of whether one shares Goldsmith’s admiration, his article is worth reading because it well describes what Kennedy was about.

Goldsmith correctly points out that despite Kennedy’s notable rulings in favor of the left, Kennedy usually sided with the right — e.g., to invalidate Obamacare, revitalize the Second Amendment right to bear arms, defend federalism, and uphold business prerogatives. And Kennedy is the author of the Court’s opinion in Citizens United, the bete noire of the left.

Goldsmith identifies three key elements of Kennedy’s jurisprudence. First, his articulation of “dignity” as a core principle of constitutional law.

Second, a strong libertarian streak. Ilya Shapiro says that Kennedy agreed with the Cato Institute more than any other justice did.

Third, a robust conception of judicial power. As Goldsmith puts it, Kennedy “had great confidence that the court’s intervention in contentious issues was vital to the effectiveness of the constitutional scheme.”

Conservative unhappiness with Kennedy stems from the intersection of the first and third strands of his jurisprudence. Robust judicial intervention in the name of upholding judges’ notions of human dignity seems, on balance, problematic. As Shapiro says, “decisions that come from. . . a special access to truth are incompatible with the rule of law.”

Such judicial intervention looks more problematic when one judge’s notion of human dignity — his special access to truth — routinely carries the day in the biggest cases. That was how things were during a chunk of Kennedy’s time on the Supreme Court.

This wasn’t Kennedy’s fault; it was down to the happenstance of the court’s ideological composition. Nonetheless, Kennedy’s role as the Justice in the middle brought his lack of judicial modesty to the fore.

The tension between democracy and one unelected man’s preferences and/or view of “dignity” mattering so much was apparent to observers on both sides of the political spectrum (at least in cases that didn’t go their way), but maybe not to Justice Kennedy.


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