What is Kennedy About?

The United States Supreme Court is as bitterly divided as it has ever been. On one wing are Chief JusticeRoberts and Justices Scalia, Thomas and Alito. On another are Justices Kagan, Ginsburg, Breyer and Sotomayor. Then there is Justice Anthony Kennedy.

Kennedy has written some of the most important -- and some of the most difficult to reconcile -- decisions in the last twenty-five years. He wrote the majority opinion in the Citizens United decision in part because he was the swing vote. He was the author of the Court's most recent decisions on gay rights, Romer v. Evans and Lawrence v. Texas.

And last week he wrote the opinion in a decision declaring the California penal system to be in fundamental violation of the 8th Amendment because of its drastic overcrowding and abominable health conditions. Brown v. Plata announced that state governments do not have unlimited authority to manage the way they handle prisoners because the constitution requires the courts to maintain certain levels of treatment.

In each case he has made someone angry. To an extent this may be unavoidable, since the issues being considered matter so much and the differences among justices are so stark. But some of the anger arises because it is not easy to predict exactly where Kennedy will fall on any given issue. Linda Greenhouse, perhaps the most veteran Supreme Court reporter working today, called his latest decision "remarkable." Scalia called it "a judicial travesty" because it "ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity." Considering how many times Scalia has joined with Kennedy on important stuff, his anger stands out.

So what, exactly, is Kennedy's jurisprudence? This is no small question, and has drawn the attention of several scholars and reporters.

Frank Colucci says that "Kennedy’s core belief [is] that judges have a duty to ensure the word liberty in the Constitution be given its full and necessary meaning. " That kind of reading would annoy people like Scalia, who believe most deeply in judicial restraint. (Or at least say they do; I think Scalia can be a skunk on this question. See the Citizens United case.)

Helen Knowles says he is a libertarian.

Ilya Shapiro, writing in the Harvard Journal of Law and Public Policy, rejects the idea that Kennedy is a true libertarian, and argues that "Justice Kennedy may thus be better described as being in favor of good government—with liberty as a positive and welcome externality—but one that requires his workmanlike beneficence to bring the majestic law to the people."

My biggest concern here is that Kennedy may be thinking less about coherent jurisprudence and more about the politics of the Supreme Court. I don't mean this cynically. Kennedy and Sandra Day O'Connor famously made their marks by trying to maintain the civility and balance of the Court itself, as an institution. He has said that he worries about such things in our system as a whole, and I certainly agree, as I have written in this space. So Kennedy may be trying to do what John Roberts really should be doing: leading the Court as a group of people.

As senior justice in many cases, "Kennedy might keep an opinion for himself that Stevens would have handed off to another liberal justice. Kennedy might write the same decision more narrowly than Stephen Breyer or Ruth Bader Ginsburg would have." This desire to moderate pinions may have as much to do with maintaining some institutional working balance as maintaining intellectual consistency.


I'm concerned because this goal may be a good one, but it reflects a failure on the part of the (very young) chief to manage his job, and may bode badly for the future. I hope Kennedy and the Court can reach his goal without his having to abandon efforts at consistency.