Justice Kennedy at Pepperdine

Thanks to L.A. County Superior Court Judge Lawrence Mira (my wife’s boss), my wife and I were able to attend a conference/gathering with Supreme Court Justice Anthony Kennedy at Pepperdine Law School. Justice Kennedy was in good form. I have met him before and had a chance to talk with him, when he visited my law school and I was asked by the then-Dean to introduce him to the students.

Kennedy is a very warm and personable man. He answered many questions in a thoughtful manner, but was also quick on his feet with quips and humorous stories. My favorite was his story of visiting some federal practice attorneys in Alabama. They asked him whether he actually read all the briefs. He replied that he enjoyed listening to opera, so he would read the briefs at home listening to opera. Depending on length and subject matter, some briefs were one-opera briefs, others were two-opera briefs, with the occasional three-opera brief. Kennedy related how those Alabama attorneys must have thought him to be some snooty elitist from D.C., talking about opera. But one of the attorneys responded that he had a similar system when writing briefs to the court. There was the one six-pack brief, the two six-pack brief….

Kennedy gave some insight into the Court’s process and his (guarded) opinions about other justices. He expounded on constitutional interpretation and the roles of advocates and judges. He also explained his philosophy of judging. That turned out to be no philosophy at all, as he cheerfully conceded. This is where I am troubled by Kennedy. His lack of a consistent philosophy shows in his opinions. He defends his approach by claiming that subscribing to a particular approach might cause the judge to pay more attention to complying with the philosophy than considering the case on its own merits. One can read this as a not-too-subtle dig at Justice Scalia and, perhaps, at Justice Thomas.

There are several problems with Kennedy’s approach. First, from a precedential standpoint, his approach fits well with his positioning himself as a “centrist” or “swing” vote. Justice O’Connor on the right and, less effectively due to the slight rightward tilt of the Court, Justice Souter on the left used to play those roles before they retired. Justice Kennedy’s counterpart on the Left today (and heir to Justice Souter) would be Justice Breyer. Such swing justices can have significant effect on the immediate cases. Their presence can certainly be useful to smooth out ideological and jurisprudential differences among the justices and to lend constitutional movement a more appropriately incremental, evolutionary cast. But their opinions often have little staying power, and their influence wanes quickly after they leave the Court. More jurisprudentially rigorous and principled justices, such as Scalia, are playing long ball. Many of their opinions, too, will lose force once they leave the Court, but some will become dominant doctrine in the future. These are the justices whose legacy is more likely to be remembered.

Second, institutionally speaking, the Supreme Court is different from trial courts or intermediate appellate courts. The Supreme Court is a “court of law, not a court of error.” Developing law requires attention to predictability and consistency. That is best accomplished within a jurisprudential framework that gives form to the decisions over time. For example, Justice Scalia’s “original meaning” framework gives a cohesiveness across cases that lends legitimacy to the result. As Justice Kennedy noted, the Court has to explain its decisions, which gain legitimacy through the reasoning. Having a rigorous analytical approach that constrains the subjectivity of judges’ decisions furthers that legitimacy. Moreover, it is unlikely that a specified jurisprudential framework will imprison the judge’s will. Judges are not known for being shy about making known their ideological views and impressing them on their decisions. At most, a jurisprudential framework will have the salutary effect of braking the natural tendency of the justices to decide cases according to their preferences.

Third, even if a justice shuns a jurisprudential framework, he or she is still likely to clothe an opinion with references to precedent. Precedent, too, is intended to constrain variability and promote consistency and predictability. Even judges such as Justice Kennedy pay formal homage to precedent and will even adhere to precedent, at least when it serves his purpose. No judge disclaims fealty to the doctrine of stare decisis. As an aside, even were a judge to do so, that, too, would be a jurisprudential approach, at least of sorts.

Justice Kennedy also defended the use of foreign law in Supreme Court opinions. He declared that such use was merely a recognition that the decision reached by the Court was supported by common attitudes in other countries. The use of foreign law operates as an affirmation of the Court’s decision, not as the basis of that decision. In support, he referred to the Declaration of Independence language about decent respect for the opinions of mankind requiring an explanation for what the Americans did there.

This rationalization is unconvincing. First off, the Declaration is not a legal document, but a manifesto that seeks political justification for a revolution and diplomatic and military alliances with foreign nations. Second, Justice Scalia has done a thorough job destroying the argument in favor of the use of foreign legal sources in his debate with Justice Breyer at American University a few years ago. There is no reason to seek “affirmation” from foreign courts for decisions involving the American Constitution. There is no democratic connection or a shared political culture with those foreign courts. Those courts come from a different legal culture and tradition, as well. Moreover, those courts were not around when the framers adopted the Constitution. If references to foreign law do not determine the outcome, as Justice Kennedy has assured, they are meaningless and should be omitted from official cases. As Justice Scalia has pointed out, justices are free to read foreign legal sources and comment on them outside the written opinions, such as at conferences.

One more point. Justice Kennedy averred that the reason he is not confining his search for constitutionally protected rights to those expressly protected in the language of the document is that, had the framers thought that they could foresee all the particular aspects of liberty, they would have written them down. But they protected “liberty” more broadly. Leaving aside the obvious point whether the protection of liberty in the due process clause(s) was intended to be more than a protection of a fair trial before incarceration, there are significant problems with Justice Kennedy’s conception of “substantive due process.” Obviously the framers did not intend the list of protections in the Bill of Rights to be an exhaustive recitation of all rights a person might have. The Ninth Amendment confirms that.

But the real issue is how, and by whom, the balance between the exercise of individual liberty and the community’s need for order was to be struck. That’s why an originalist such as Scalia (and, contrary to current academic fiction, there were many originalists before Scalia) would argue that, in the absence of express language of constitutional protection for some claimed right, that balance was to be struck by the political process, not by the courts. “Liberty,” after all, is a very expansive concept. Law is an ordering device that seeks, first and foremost, to control liberty. My liberty to kill my neighbor is controlled by law just as much as my liberty to engage in consensual sexual conduct or to make consensual contracts of employment.

The problem under the Kennedy approach is to decide how to separate constitutionally recognized liberty interests that are protected just as much as if they had been expressly enumerated from those that do not so qualify. That task has led to charges of result-orientation and ideologically-motivated judging. Justice Kennedy declared that each generation must be able to give constitutional content to its values. If that is so, however, and leaving aside Justice Kennedy’s own objection to popular influence over constitutional content in Planned Parenthood v. Casey, which branch best reflects those popular values, the unelected and isolated federal judges or the popularly-elected legislatures? Which process best reflects the requisite flexibility to allow each generation to shape the Constitution? Is it to constitutionalize issues so that any change is difficult to achieve except by constitutional amendment or the laborious process of overriding decisions? Or is it by leaving decisions not specifically taken from majoritarian control by the express words of the Constitution within the more flexible and responsive political process?

These questions demand much fuller discussion. Justice Kennedy raised these questions, and I believe that he failed to answer them adequately. That said, I wish that our school would make a concerted effort to bring Supreme Court justices to campus, a task at which Pepperdine and, to a degree, Chapman, have been quite successful. Instead, we will bring in yet another post-modern Leftist to demonstrate exclusively how various identity groups are oppressed by America’s endemic and subconscious racism, sexism, homophobia, and other evils that occupy the fevered imaginations of typical academics.