April 3, 2006

Is Justice Kennedy the new O'Connor?

Adam Cohen analyzes the new balance of power on the Supreme Court:
With Sandra Day O'Connor's retirement, there is a new swing justice in town....

Looking back at the 5-to-4 decisions in which Justice O'Connor was in the majority suggests that having Justice Kennedy replace her in the center could mean major changes. She provided the fifth vote to reject a constitutional challenge to the McCain-Feingold campaign finance law, while he dissented. She was the fifth vote to uphold affirmative action in public university admissions, while he again dissented. Although both justices have supported Roe, he has voted to uphold greater restrictions on abortion rights....

[T]here are signs that his views are evolving. Last year, he wrote the decision ending the juvenile death penalty, reversing his 1989 position. And he has become an increasingly strong advocate for taking international law into account, to the distress of many conservatives.

He is also someone who cares what other people think. The Supreme Court scuttlebutt has always been that he is open to persuasion by colleagues, and even law clerks. It is sometimes said condescendingly, but there is something refreshing about a justice who genuinely seems to have an open mind. When he switched sides on the juvenile death penalty, he wrote a thoughtful opinion noting both that the American people had turned against it and that "the overwhelming weight of international opinion" opposed it.

Perhaps most important, it is not yet clear how Justice Kennedy will be changed by his vastly expanded influence. Justice O'Connor was very aware of her position as the swing justice, and it made her deeply aware of the impact her votes had on real people's lives. Justice Kennedy may inherit that mantle of concern. It is one thing to argue in dissent that campaign finance laws violate the First Amendment. It is quite another to cast the vote that prevents a nation weary of lobbying scandals from trying to clean up its elections.

It was often said that the Rehnquist Court was really the O'Connor Court. In the same way, the Roberts Court could turn out to be the Kennedy Court. It is too early to know what that would mean — even Justice Kennedy probably couldn't say. But it is likely that rather than pleasing any ideology or interest group, the court will be guided by one man's sometimes idiosyncratic, but evidently quite sincere, attempt to reach the right result.
So Cohen is hoping for outcome-oriented decisionmaking from the newly empowered justice. Nice of him to come right out and say it. He gives little credit to Kennedy's commitment to First Amendment rights, which has, I think, been the most distinctive aspect of his role on the Court.

I assume Kennedy will be changed by his new position of power, but I hope he uses it to bring principle and clarity to the law.

27 comments:

brylin said...

And what of your prediction made on December 31, 2005:

"So I want to make a different prediction for what 2006 will be like for the Supreme Court: Kennedy will work with John Roberts to forge a newly coherent moderate-conservative position. The project of creating an articulate moderate position will be so compelling and promise such benefits that Stephen Breyer will contribute his formidable skills, and we will see the era of fragmented, ad hoc decisionmaking come to an end.

It's a good thing I didn't hold my breath (see my comment at the time).

Gerry said...

Serious question-- is it even possible for a "swing" jurist to bring clarity to the law? It seems to me the concepts might be, by nature, at odds.

Ann Althouse said...

Brylin: That's still my prediction. I was going to look up that old post and include it here, but didn't take the time to do it. Thanks for providing it.

37383938393839383938383 said...

The thing is, Kennedy is probably going to vote how he did on cases that were 6-3 and 7-2, etc. The "change" will come in cases where his concurrence is determinative. Will he move to the left? No. He will try to develop his own (conservative)jurisprudence, because he will be writing more majority opinions! I suspect that Breyer-Kennedy really function as a joint-swing in a number of the most closely contested cases.

Thorley Winston said...

Not a very flattering piece. One hopes that Justice Kennedy is more principled than Mr. Cohen suggests.

PDS said...

This is the sort of thing that makes me wish the Supreme Court were transferred to Iowa or something. Make them live outside the Beltway. Would there be anything so wrong with that?

Al Maviva said...

I for one am looking forward to more decisions grounded in the God-given right to define the mysteries of life for one's self. It's a travesty of our litigious age that this right hasn't been enshrined in its rightful place as the 71st Amendment, right behind the Penumbral Emanations of the First Through Fourth Amendments Amendment...

Hopefully when he is listening to everybody's opinions and ruling accordingly, he doesn't stop to listen to that long haired, long fingernailed crazy homeless guy who hangs out on the corner of 2nd and East Capitol Street, by the backdoor to the Court. Otherwise, we may see the recognition of a right to wear underwear on the outside, and a corresponding right to get the arcwelder monkeys to stop the CIA mind control satellite cockroaches...

Thorley Winston said...

I for one am looking forward to more decisions grounded in the God-given right to define the mysteries of life for one's self. It's a travesty of our litigious age that this right hasn't been enshrined in its rightful place as the 71st Amendment, right behind the Penumbral Emanations of the First Through Fourth Amendments Amendment...

Hopefully when he is listening to everybody's opinions and ruling accordingly, he doesn't stop to listen to that long haired, long fingernailed crazy homeless guy who hangs out on the corner of 2nd and East Capitol Street, by the backdoor to the Court. Otherwise, we may see the recognition of a right to wear underwear on the outside, and a corresponding right to get the arcwelder monkeys to stop the CIA mind control satellite cockroaches...


ROTFLMAO!

Bruce Hayden said...

Interesting point - that we may be seeing more Kennedy-Breyer swings than before. I have been pleasantly surprised that Justice Breyer seems to be more centrist than I expected. The conservatives seem as likely to pick him up these days as they are to lose Kennedy. And that is the last thing I would have expected from a Clinton appointee.

What should be scaring the liberals right now is that the other three, more liberal, Justices, are the three most likely to leave the court: Stevens for age, Ginsburg for health, and Souter potentially because of a personal committment to do so. Replacing just one of them with a Roberts / Alito would seem likely to move the court significantly to the right - because then Kennedy and Breyer would be on the left.

vnjagvet said...

Looks like Justice Kennedy hadn't fully "evolved" enough to rule for Mr. Padilla in today's cert. denial.

brylin said...

The Padilla denial of certiorari today has an opinion written by Justice Kennedy and concurred in by Chief Justice Roberts and Justice Stevens. Ginsburg dissents (and reportedly is joined by Breyer and Souter).

On reading the Kennedy opinion I get the feeling that he is being wooed by both Roberts and Stevens.

37383938393839383938383 said...

I get the feeling Scalia and Stevens bicker so much because Stevens tried to woo Scalia and Scalia did not like it. See Lawrence v. Texas.

R C Dean said...

Don't you love how, whenever a Justice "evolves", it always seems to require a certain leftward movement?

MadisonMan said...
This comment has been removed by a blog administrator.
John Thacker said...

He gives little credit to Kennedy's commitment to First Amendment rights, which has, I think, been the most distinctive aspect of his role on the Court.

An excellent point. Several analyses of the Court have shown that Justice Kennedy is definitely the most likely to uphold First Amendment claims of all types. I can't remember all the details, but I recall that Justice Thomas was in the second tier.

Marghlar said...

Ditto on Kennedy and 1st Am. rights. I almost stood up and applauded when he wrote:

The New York statute we now consider imposes severe restrictions on authors and publishers, using as its sole criterion the content of what is written. The regulated content has the full protection of the First Amendment and this, I submit, is itself a full and sufficient reason for holding the statute unconstitutional. In my view it is both unnecessary and incorrect to ask whether the State can show that the statute "'is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.'" Ante, at 118 (quoting Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 231, 95 L. Ed. 2d 209, 107 S. Ct. 1722 (1987)). That test or formulation derives from our equal protection jurisprudence, see, e. g., Wygant v. Jackson Board of Ed., 476 U.S. 267, 273-274, 90 L. Ed. 2d 260, 106 S. Ct. 1842 (1986) (opinion of Powell, J.); Hirabayashi v. United States, 320 U.S. 81, 100, 87 L. Ed. 1774, 63 S. Ct. 1375 (1943), and has no real or legitimate place when the Court considers the straightforward question whether the State may enact a burdensome restriction of speech based on content only, apart from any considerations of time, place, and manner or the use of public forums.

Simon & Schuster v. Members of NY State Crime Victims Board, 502 US 105, 124 (1991).

Ditto when he said the same thing recently in Republican Party v. White. Good stuff. However, its hard to envision him being any kind of swing vote on First Am. issues, sadly, except maybe in the politicized cases. Thus, I'm willing to be that this will continue to be a minority position.

Doug H. said...

Cohen Said

"But it is likely that rather than pleasing any ideology or interest group, the court will be guided by one man's sometimes idiosyncratic, but evidently quite sincere, attempt to reach the right result."

I translate:

"Rather than carelessly pleasing an idealogy or interest group, Justice Kennedy actually tries to reach the right result. This is in stark contrast to his idiot blowhard colleagues who can't wait to throw justice and equity out the window if they can please the New York Times or the Federalist Society. And don't even get me started on Originalism."

Dave Ebersole said...

Mr. Cohen telegraphs his viewpoint from his second sentence. He writes:

He strongly suggested by his questions that he would join the four moderate justices in rejecting the Bush administration's position on a key aspect of its war-on-terror powers.

Regardless of one's viewpoint of the Bush administration or its position in Hamdan, the characterization of the Court's left wing as moderate, and thus the implicit characterization of the Court's right wing as somehow immoderate (is that even a word?) is implicit with the arguments seen in the sham Senate Hearings that the Supreme Court must serve some sort of progressive, "activist" stance.

It seems quite clear that Mr. Cohen is trying to imply that Justice Kennedy must evolve to this "moderation," in order to best serve the country.

I hope that he is not too swayed, but moreover, that the Roberts Court will work to clear up some of the significant conflicts of law that have evolved in the last few years.

Simon said...

My opinion about Justice Kennedy's future performance hasn't really changed since I wrote this last October. I think it abundantly clear that "Kennedy will more than ever feel the allure of becoming the court's ['moderate'] swing vote; the pressure on him to defect will be intense, and I think he will likely succumb."

Wade_Garrett said...

Justices who "evolve" don't necessarily move to the left. Simply because Stevens and Souter have done so doesn't mean that its necessarily a rule. Did Earl Warren move to the left, or did he just do the right thing?

I agree with Doug H's take on things. I've said for a while now that the conservatives who claim that the liberal justices are only out to please the New York Times are ignoring the fact that you could make the same claim about conservative judges trying to please the Federalist society. Or they could all be acting out of principle. Justice Stevens has said that he has changed some of his positions (for instance, on affirmative action) after seeing the practical effects of his previous decisions. I don't necessarily think that's a bad thing.

Jonathan said...

Frankfurter moved to the right while he was on the Court.

Tom T. said...

It seems to me that the NYT article can be read as conveying an offer to Justice Kennedy: "Take over O'Connor's role, and you'll get good press from us."

brylin said...

And he'll get invited to all the good parties. Republicans are asleep by 9pm.

downtownlad said...

Well somebody has to be the swing justice.

I'm sure if Bush appointed James Dobson, Pat Buchanan, and Jerry Falwell to the Supreme Court, even Scalia or Thomas could become the swing justice.

Simon said...

"Justice Stevens has said that he has changed some of his positions (for instance, on affirmative action) after seeing the practical effects of his previous decisions. I don't necessarily think that's a bad thing."

I think it's absolutely a bad thing; the meaning of the law doesn't change based on outcome. I have respect for the Judge who says that the Constitution supports affirmative action, and I have respect for the Judge who says it does not, but I have no respect for a Judge who says that he thinks the Constitution prohibits it, but because society needs it, he's not willing to be the guy who puts a stop to it.

A Judge's interpretation of what the law says should be framed in terms of what the law actually says, not what the Judge thinks that might mean in practical terms. Thus, if the effect of the law is pernicious, the law should certainly be changed - positive law should mirror natural justice, in my view - but that decision is within the purview of the legislative branch, not the courts. “I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution.” - Ulysses S. Grant.

Marghlar said...

Simon:

Sometimes, the Constitution asks judges to make judgment calls -- what searches are unreasonable, what punishments are cruel, etc....In cases where there is more than one possible answer, surely a judge can appropriately consider extrinsic factors like outcomes. To my way of thinking, this makes sense whatever your interpretive position is, unless you really don't believe that any legal ambiguity exists, which I think is just silly.

Justice Stevens would say, I think reasonably, that affirmative action programs exist within an ambiguity of the Equal Protection clause.

Simon said...

Well, that's true, but I think that such decisions (which are not what I take Terry to be saying) should be governed by clear rules and doctrines, by neutral standards that attempts to bring the obviously subjective "reasonable" standard under the governance of some objectively determinable criteria. The rule of law, as someone once said, is a law of rules.

I'll admit that I went through a phase where I was not so willing to admit to ambiguity in the law, and I think this tendancy is followed by many of those conservatives who use terms like "strict construction" or "originalism" as buzzwords, rather than to connote their proper meaning. I hope I've matured somewhat since then. There are areas of ambiguity in the Constitution and the law, and it is appropriate for courts to fill these gaps with doctrine; I don't object to construction. For example, I have no objection to the exclusionary rule (see comments here), and I think Our Hero's concerns about Miranda are overblown. But where there is scope for construction and discretion, I really do think that judges should rely on solid, determinable and judicially managable standards.