"The Decider".
The Decider
One justice routinely tips the Supreme Court into a majority. What principles guide his thinking?
By JOHN O. MCGINNIS
The Supreme Court's newest member, Sonya Sotomayor, has been getting all the press recently, and for good reason. But she will probably not shift the court decisively in one direction or another. The "decider" role remains with Anthony Kennedy: He sits dead center in a court still polarized between four conservative justices and four liberal ones. In the 2006-07 term, for instance, Justice Kennedy joined the majority in all its 5-4 decisions. Lee Epstein and Tonja Jacobi, two political scientists who have studied the court's rulings in recent years, argue that Justice Kennedy acts as a "supermedian justice," because the views of even his proximate colleagues on the right and left are so distant from his own. He thus has enormous discretion to cast a majority-creating vote that may well make precedent for years to come.
For all its importance, Justice Kennedy's outlook can appear puzzling at times, either maddeningly capricious or philosophically incoherent. In "Justice Kennedy's Jurisprudence," Frank J. Colucci manages to define it with admirable precision, debunking along the way the oversimple ways in which Justice Kennedy has been characterized by people who disagree with his decisions. Mr. Colucci shows that his ideas are not inconsistent or dismissible as mere caprice or opportunism.
The key to Justice Kennedy's votes, Mr. Colucci says, is his moral reading of the Constitution: He sees the document as an unfolding story of ever greater individual liberty. Thus he opposes laws that abridge sexual freedom, including laws against homosexual conduct. If an originalist reading of the Constitution does not reveal such a liberty—relying on the received meaning of the Constitution's words at the time they were written—Justice Kennedy's moral reading does. But he is skeptical of race-conscious programs, too, because they treat applicants as members of a group rather than as individuals who possess the right to be free from group-based policies or rules.
Obviously, there is something in such positions to offend people on either side of the ideological fault line—including Justice Kennedy's colleagues on the court. The same is true in matters of religion. Justice Antonin Scalia believes that the Establishment Clause, the part of First Amendment that outlines religious freedom, limits only wholesale government efforts to favor one particular religious view over others. He thus sees no barrier to denominational prayer at high-school graduations. John Paul Stevens, by contrast, deems unconstitutional any governmental effort, like school vouchers or school prayer, that may have the effect of promoting religion itself. Justice Kennedy, typically, fits into neither category of reasoning. To him, the Establishment Clause preserves individual liberty rather than simply defining the relation of church and state. He upholds school-choice programs because they promote liberty through choice; he bans school prayers at graduation because they coerce a captive audience.
Most valuably, Mr. Colucci shows Justice Kennedy's judicial philosophy to be a deeply rooted one and not, as one might suspect, the result of varied decisions that require a casuist or law professor to make coherent. He unearths a speech from 1986 in which Justice Kennedy (then an appeals-court judge) criticized Bowers v. Hardwick, a case in which the Supreme Court upheld a conviction for sodomy. At the time the judge did not argue, as others had, that the decision violated the right to privacy minted more than a decade before in Roe v. Wade. He argued instead that the liberty interests of gay Americans had been breached. In 2003, the court overruled Bowers v. Hardwick, and Justice Kennedy wrote the majority opinion using the rhetoric of liberty rather than privacy.
Looking for the sources of Justice Kennedy's moral judgment, Mr. Colucci discovers one in post-Vatican II Catholic thought, including papal encyclicals like Dignitatis Humanae. In Roper v. Simmons, a ruling forbidding the death penalty for criminals under the age of 18, Justice Kennedy wrote that juveniles only rarely exhibit "irreparable corruption"—a phrase that a secular judge might not have used. (Justice Kennedy is an observant Catholic.) It is odd to reflect that the justice most influenced by contemporary Catholic thought may today be—because of his emphasis on individual rights—the decisive vote for preserving the abortion status quo.
It is implicit in Mr. Colucci's analysis that Justice Sotomayor will probably not have much influence on Justice Kennedy's decisions, despite their shared Catholic background. Justice Sotomayor's famous declaration—that a "wise Latina" will often come to a better judicial ruling than a white male—implies an ethnic-and-gender "essentialist" philosophy that is repugnant to Justice Kennedy's core individualism. If President Obama was hoping that Justice Sotomayor would sway the one vote that makes most constitutional law today, he may be disappointed.
If Mr. Colucci succeeds wonderfully in explaining Justice Kennedy, he succeeds less well in justifying him. The difficulty with moral readings of the Constitution is that, most of the time, the moral outlook that plays such a decisive role is grounded in a particular justice's personal experience and convictions or in his particular understanding of American life and history. Other moral readings of the Constitution could legitimately give pride of place to equality, or social solidarity, or national security, instead of liberty. If liberty is what most needs preserving, as Justice Kennedy seems to believe, then the better course is simply to preserve the original meaning of the Constitution, where we will find the freedoms we have chosen for ourselves.
Mr. McGinnis teaches at Northwestern University Law School in Chicago.
One justice routinely tips the Supreme Court into a majority. What principles guide his thinking?
By JOHN O. MCGINNIS
The Supreme Court's newest member, Sonya Sotomayor, has been getting all the press recently, and for good reason. But she will probably not shift the court decisively in one direction or another. The "decider" role remains with Anthony Kennedy: He sits dead center in a court still polarized between four conservative justices and four liberal ones. In the 2006-07 term, for instance, Justice Kennedy joined the majority in all its 5-4 decisions. Lee Epstein and Tonja Jacobi, two political scientists who have studied the court's rulings in recent years, argue that Justice Kennedy acts as a "supermedian justice," because the views of even his proximate colleagues on the right and left are so distant from his own. He thus has enormous discretion to cast a majority-creating vote that may well make precedent for years to come.
For all its importance, Justice Kennedy's outlook can appear puzzling at times, either maddeningly capricious or philosophically incoherent. In "Justice Kennedy's Jurisprudence," Frank J. Colucci manages to define it with admirable precision, debunking along the way the oversimple ways in which Justice Kennedy has been characterized by people who disagree with his decisions. Mr. Colucci shows that his ideas are not inconsistent or dismissible as mere caprice or opportunism.
The key to Justice Kennedy's votes, Mr. Colucci says, is his moral reading of the Constitution: He sees the document as an unfolding story of ever greater individual liberty. Thus he opposes laws that abridge sexual freedom, including laws against homosexual conduct. If an originalist reading of the Constitution does not reveal such a liberty—relying on the received meaning of the Constitution's words at the time they were written—Justice Kennedy's moral reading does. But he is skeptical of race-conscious programs, too, because they treat applicants as members of a group rather than as individuals who possess the right to be free from group-based policies or rules.
Obviously, there is something in such positions to offend people on either side of the ideological fault line—including Justice Kennedy's colleagues on the court. The same is true in matters of religion. Justice Antonin Scalia believes that the Establishment Clause, the part of First Amendment that outlines religious freedom, limits only wholesale government efforts to favor one particular religious view over others. He thus sees no barrier to denominational prayer at high-school graduations. John Paul Stevens, by contrast, deems unconstitutional any governmental effort, like school vouchers or school prayer, that may have the effect of promoting religion itself. Justice Kennedy, typically, fits into neither category of reasoning. To him, the Establishment Clause preserves individual liberty rather than simply defining the relation of church and state. He upholds school-choice programs because they promote liberty through choice; he bans school prayers at graduation because they coerce a captive audience.
Most valuably, Mr. Colucci shows Justice Kennedy's judicial philosophy to be a deeply rooted one and not, as one might suspect, the result of varied decisions that require a casuist or law professor to make coherent. He unearths a speech from 1986 in which Justice Kennedy (then an appeals-court judge) criticized Bowers v. Hardwick, a case in which the Supreme Court upheld a conviction for sodomy. At the time the judge did not argue, as others had, that the decision violated the right to privacy minted more than a decade before in Roe v. Wade. He argued instead that the liberty interests of gay Americans had been breached. In 2003, the court overruled Bowers v. Hardwick, and Justice Kennedy wrote the majority opinion using the rhetoric of liberty rather than privacy.
Looking for the sources of Justice Kennedy's moral judgment, Mr. Colucci discovers one in post-Vatican II Catholic thought, including papal encyclicals like Dignitatis Humanae. In Roper v. Simmons, a ruling forbidding the death penalty for criminals under the age of 18, Justice Kennedy wrote that juveniles only rarely exhibit "irreparable corruption"—a phrase that a secular judge might not have used. (Justice Kennedy is an observant Catholic.) It is odd to reflect that the justice most influenced by contemporary Catholic thought may today be—because of his emphasis on individual rights—the decisive vote for preserving the abortion status quo.
It is implicit in Mr. Colucci's analysis that Justice Sotomayor will probably not have much influence on Justice Kennedy's decisions, despite their shared Catholic background. Justice Sotomayor's famous declaration—that a "wise Latina" will often come to a better judicial ruling than a white male—implies an ethnic-and-gender "essentialist" philosophy that is repugnant to Justice Kennedy's core individualism. If President Obama was hoping that Justice Sotomayor would sway the one vote that makes most constitutional law today, he may be disappointed.
If Mr. Colucci succeeds wonderfully in explaining Justice Kennedy, he succeeds less well in justifying him. The difficulty with moral readings of the Constitution is that, most of the time, the moral outlook that plays such a decisive role is grounded in a particular justice's personal experience and convictions or in his particular understanding of American life and history. Other moral readings of the Constitution could legitimately give pride of place to equality, or social solidarity, or national security, instead of liberty. If liberty is what most needs preserving, as Justice Kennedy seems to believe, then the better course is simply to preserve the original meaning of the Constitution, where we will find the freedoms we have chosen for ourselves.
Mr. McGinnis teaches at Northwestern University Law School in Chicago.
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