October 16, 2009

"If you can invent it" — judicial review — "you can do whatever you want with it."

An observation, made by Justice Anthony Kennedy, about why it made a difference whether judicial review is implicit in the Constitution or an invention of judges.

He was giving the keynote address yesterday afternoon for the symposium "Judicial Review: Historical Debate, Modern Perspectives, and Comparative Approaches" at George Washington University Law School. (I'm on a 9 a.m. panel today.)

I was particularly interested in that comment, because I don't agree with it. I think a judge who believes that judicial review was invented might feel more inclined toward restraint, and a judge who thinks judicial review was inherent in the original Constitution might feel more inspired toward activism. But of course it could be the other way around too.

Justice Kennedy allowed questions in the end, and one of the student questioners said "I think you know the role you play on the Court" and asked if he "enjoyed" it. As you might expect, the Justice ignored the obviously intended reference to Kennedy's power as the swing vote.

He just talked about how much he enjoys the work of judging. He got into the subject of how many briefs he has to read. It is a burden, like exam reading for lawprofs. "I never read a brief I couldn't put down." He said he listens to opera while reading briefs and, some cases being harder than others, he has "1-opera" and "2-opera" cases. He wrapped up this charmingly evasive answer with an anecdote about a lawyer who wisecracked, in response to that "1-opera" and "2-opera" business — which Kennedy conceded sounded pretentious — that when he wrote those briefs, he had the "1-6-pack" and the "2-6-pack" kind.

There were anecdotes and digressions throughout his extemporaneous speech, which he made standing next to and leaning against the lectern (which he called a "podium").

Random things: He's reading his way through Thomas Jefferson's reading list. "Harry Blackmun wouldn't change a comma after April 1." When, at conference, a Justice sees that he's got 5 votes for his side, the mood remains appropriately somber — "There are not a lot of high 5s." The Framers liked metaphors having to do with clocks, gears, and pendulums. Judicial power depends on the people's reverence and allegiance toward and for the law the judges expound. Americans will fight if you take away their rights. "The law is knowable, ascertainable."


The Crack Emcee said...

"The Framers liked metaphors having to do with clocks, gears, and pendulums. Judicial power depends on the people's reverence and allegiance toward and for the law the judges expound. Americans will fight if you take away their rights. 'The law is knowable, ascertainable.'"

That's the first comforting thing I've read in days.

traditionalguy said...

Observations: Kennedy nails it saying the key to a lawful society, Court, or Congress is a reverence and allegiance towards the law the judges expound. C-MC's Blog reports on the horror of living among unlawful persons who are following unlawful powers.

Skipper50 said...

Thanks be to Kennedy for confirming that the law is whatever lawyers in black robes say it is.

traditionalguy said...

The Judicial Review made up by John Marshall has worked as a continual "get out of the limitation of the original document free" card for 200 years. It must be nice work if you can get it to be one of the five enlightened philosophers running their own undercover Constitutional convention continually.But then it is easier than doing the real thing.

Pogo said...

Supreme Court justices and lawyers and prosecutors like to talk about The Law like sacred scripture, at the same time they interpret clear and direct passages to mean whatever the hell they want it to mean.

For 200 years, the Original Intent has been chipped away.

Since 1930 or so, the very roots of the Constitution were hacked at, and the Law was ever since more honour'd in the breach than the observance.

Today, The Law is a mere talisman, a remnant of a culture past, used as if it had holy powers, while the actual words and their meanings were forever lost. Thucydides described this in his book on The Peloponnesian War, and warned that once words lost their meaning, the end was near.

Quayle said...

All hail the Commerce Clause, the mother's milk - the very lifeblood of our advanced and enlightened republic.

Do you suppose the mood remains appropriately somber every time the Justices drive an 18 wheeler through little old Article 1, Section 8, Clause 3 and right over enumerated powers?

EDH said...

Whatever the origin of judicial review, it reminds me of an old aphorism:

Why does a dog lick his balls?

Because he can.

While the initial question implies a purpose specific to the canine species that places humans above them, in the end the difference in observed behavior between dog and man largely comes down to a less lofty reason -- a mere physical constraint against doing that which makes one feel good.

ricpic said...

The end is near! The end is near!
The law is but pretense.
Allegiance Constitutional?
A dog pees on a fence.

Bissage said...

"If you can invent it" — judicial review — "you can do whatever you want with it."

That quote is little more than a rewording of the familiar “Without God all things are permitted.”

I don’t point that out to denigrate Justice Kennedy at all.

It’s just that there is nothing new under the sun.

Fred4Pres said...

Scalia makes more sense.

But they both love the opera don't they?

virgil xenophon said...

traditional guy scores a shack when he points out that Judicial review is nothing more than John Marshals own personal predilections sprung fully clothed and armored from his fertile, calculating (he knew full well what he was doing, which is why he didn't bother to tell Marbury to walk down the hall to the Court of Claims because he was in the wrong court--he WANTED the case in order to MAKE law) mind like Athena from the forehead of Zeus--a total farce, that, like the natives who believe in Witch Doctors, works only because the public is gullible enough to want it to.

Scott said...

What operas do they listen to?

I bet Kennedy listens to Wagner. Götterdämmerung probably shakes the furniture in his office.

Scott said...

Maybe we should be looking for leitmotifs in his opinions.

Jeff with one 'f' said...

Nice Thucydides reference, Pogo!

AT what point did we stop referring to the "Founding Fathers" and start calling them "The Framers"?

Despite being Dead White Men they can't be ignored so they will be de-gendered and (and de-raced) and called "Framers"?!?

Steven said...

"The law is knowable, ascertainable."

Except, you know, in advance of finding out Kennedy's personal opinion.

Bender said...


Anthony Kennedy IS the Constitution, damn it!

chuck b. said...

"You stand behind a lectern, while you stand on a podium."

I had to look it up!

Bender said...

Indeed, Anthony Kennedy is not merely a walking "living Constitution" himself, he fancies himself a god!

"At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."

Bender said...

Judicial power depends on the people's reverence and allegiance toward and for the law the judges expound.

And if half the country has soundly and thoroughly rejected the holiest of holy pronouncements from on high, invented out of whole cloth as an fiat exercise of "raw judicial power," and which has poisoned the judiciary and judicial selection process ever since, then Kennedy, et al. will simply shove it down their throats further and make them accept it, all the while patting himself on the back for how he brought unity and peace to the matter.

edutcher said...

Ann said...

He just talked about how much he enjoys the work of judging.

Why not?

Isn't power the objective of power, not to mention the world's greatest aphrodisiac?

miller said...

Why is everyone worried?

The government CARES for us.

What could possibly go wrong?

G Joubert said...

I always wondered what the function of the Supreme Court would be nowadays in the modern era if, as a supposed fully-fledged co-equal branch of government, it didn't have the power of judicial review. It's hard to feature.

And another thing that always bothered me are the facts in Marbury v Madison. Judicial review is the easiest thing to pull from the case. When I first read it I got side-tracked by the confounding roles of John Marshall as both an actor in the underlying case and then acting as the Chief Justice in deciding the case, and that the ultimate ruling seemed in contradiction to his earlier acts.

Richard Dolan said...

Ann says she disagrees with Kennedy's comment about judicial review. I assume that the focus of the discussion was judicial review of federal statutes, since that presents the harder case.

The invented/implicit distinction focuses on the origins of the judicial review principle. But where it originates strikes me as less critical in understanding whether in its operation it is activist or restrained than the substance of the principle itself. Is it a principle that enshrines the historic role of the English juidiciary (to say what the law is, while shaping it along the way), or instead the supremacy of the national gov't (the supreme law of the land, 'law' here being more textual), or the independence of the judiciary as the least dangerous branch in a tri-partite gov't (from the Declaration and a concern at the Constitutional Convention), or something else? The implicit/invented line won't help you pick among those or other alternatives. After all, the line between 'implicit' and 'invented' is at least as much in the eye of the beholder as it is in the words of any text. And you can just as easily invent a principle of judicial review that is more restrictive than whatever someone else may find implicit in a text that never mentions the concept.

Rather than the 'implicit/invented' line, I think that the what is more important in determining whether judicial review is wielded in an activist or restrained manner turns on whatever principle of legitimacy is invoked to support it.

former law student said...

I think a judge who believes that judicial review was invented might feel more inclined toward restraint, and a judge who thinks judicial review was inherent in the original Constitution might feel more inspired toward activism.

Sure, assuming a pleasingly modest judge, who fears being presumptuous. But if I'm making stuff up, why not make it up to my total satisfaction? That's why my dating profile shaves years off my age and pounds off my weight.

Julius said...

It is striking to me that the justices actually read their briefs unlike the Congress who can't be bothered to read the bills they pass in the middle of the night.

Julius said...
This comment has been removed by the author.
diggy said...

"You stand behind a lectern, while you stand on a podium."

Unless, of course, you're standing behind a podium while standing on a lectern.


AST said...

I take your point, but the fact that Article Three is so vague means that judicial restraint is essential. Brown v. Board was necessary and long overdue, but much that has followed has been truly damaging to the checks and balances of the Constitution.

If Kennedy's point is valid, the court itself has undermined reverence for the law the judges expound by repeatedly overriding the peoples' will expressed through the legislature. The abortion cases haven't settled anything, but have created bitter divisions that have made the courts into a third political branch. Confirmation hearings are now political, no-holds-barred battles.

sykes.1 said...

The Constitution is a list of explicitly delegated powers to the Congress, Presidency and Courts. Judicial review is NOT one of the listed poweres, so it is unconstitutional, period.

It is not implicit, because NO Common Law country, especially the UK, permitted judicial review until recently, and then it was recognized as an innovation.

Every time a judge exercises judicial review, he/she violates his/her oath of office and should be removed by the impeachment process.

Bender said...

Brown v. Board was necessary and long overdue

No, the end of Jim Crow and "separate but equal" was long overdue, but the reasoning underlying Brown v. Board of Education -- that black kids can't learn and succeed unless they are surrounded by white kids -- was almost as insulting.

What is LONG overdue is the adoption of Justice Harlan's dissent in Plessy --
"in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved."

What is LONG overdue is the recognition in law that it is none of the government's damn business what color or race someone is.

ELC said...

This was foretold: "It is a very dangerous thing to vest in the same judge power to decide on the law, and also general powers in equity; for if the law restrain him, he is only to step into his shoes of equity, and give what judgment his reason or opinion may dictate; we have no precedents in this country, as yet, to regulate the divisions in equity as in Great Britain; equity, therefore, in the supreme court for many years will be mere discretion." Federal Farmer III, October 10, 1787

ic said...

"Americans will fight if you take away their rights."

How about the right to universal healthcare, and the right to pay taxes to finance someone else's right to universal healthcare? The genius of Congress is it creates more rights instead of taking the rights away.

Andrew Hyman said...

"Americans will fight if you take away their rights."

That is 100% as it should be. Americans are generally a proud, rowdy bunch who don't want to be bossed around by the government. Bravo!

The only question is whether the fight will occur within the democratic process, via elections, lobbying, speeches and the rest. Or will the Supreme Court stop the fight, and decide who wins despite the democratic process, and firmly declare the winner based on five justices' empathies and antipathies? Enough of the latter!

And if Justice Kennedy truly believes that an interpretation of the Constitution is completely implausible, his obligation is to vote against it until hell freezes over. Judges are only supposed to cave into stare decisis when there is room for plausible doubt, because the judicial oath is the Constitution rather than to the U.S. Reports. IMHO.