Tribute: Justice Kennedy’s genius
on Jun 28, 2018 at 8:32 am
Michael C. Dorf is Robert S. Stevens Professor of Law at Cornell Law School. He served as a law clerk to Justice Kennedy during the October 1991 term.
During the course of over three decades on the Supreme Court, Justice Anthony M. Kennedy appeared to be the most important jurist in the country and, at least with respect to hot-button domestic policy questions, maybe even the most important government official in the country. He either wrote the key opinion or cast the decisive vote to strike down laws on abortion, affirmative action, corporate-funded political speech, the death penalty, gay rights (including marriage), gun control, school prayer, states’ rights and more. Justice Kennedy has been so central to the contemporary understanding of the Constitution that it was big news when, in the 2012 decision mostly upholding the Patient Protection and Affordable Care Act, Chief Justice John Roberts rather than Justice Kennedy cast the deciding vote. The case was the exception that proved the rule, and the rule has been the rule of Justice Kennedy.
Or at least so it might appear. The reality is somewhat complicated.
Professional basketball player Shaquille O’Neal was a notoriously poor free-throw shooter, but, he used to say in his own defense, “I make them when they count.” What he meant was that late in the fourth quarter, with the game on the line, he was a reliable free-throw shooter. That wasn’t really true, which is why the NBA changed its rules regarding intentional fouls in response to the “Hack-a-Shaq” strategy that opposing coaches had deployed to exploit the big man’s weakness. Still, even if Shaq were right and he had been a generally mediocre free-throw shooter who rose to the occasion in the clutch, his argument would have been flawed, because they all count. The final score of a basketball game reflects the points each team puts on the scoreboard over the course of the entire game.
So too with the Supreme Court. A majority comprises five justices. They all count. When observers would say that Justice Kennedy cast the deciding fifth vote in this or that case, they were taking the other four votes for granted. But those other four votes counted too. In any given case in which Justice Kennedy has been in the majority, he was no more responsible for the outcome than the other justices with whom he joined.
To be sure, we understand why court-watchers focus on Justice Kennedy. From his appointment through Justice Sandra Day O’Connor’s retirement in 2005, he was one of two “median justices,” and since 2005 he was the only median justice. With the rest of the Supreme Court split evenly among generally reliable conservative and generally reliable liberal justices, it made sense to treat the justice(s) in the middle as pivotal.
Yet even that account oversimplifies. On many issues, Justice Kennedy had quite firm views, so much so that observers should have taken his vote for granted. For example, on free speech questions, he may well have been the most libertarian justice in the Supreme Court’s history. Meanwhile, it cannot have been a coincidence that Justice Kennedy authored the majority opinion in each of the four landmark decisions protecting liberty and equality for gay and lesbian Americans. Those assignments, and the way in which Justice Kennedy fulfilled them, speak to his firm convictions on these matters.
That is not to deny that there were questions Justice Kennedy found difficult or that some of his firm convictions happened to be roughly midway between the equally firm convictions of his colleagues to his right and to his left. It is simply to say that anyone who thinks that Justice Kennedy was generally a kind of jurisprudential wild card cannot have carefully studied his record.
Nor would anybody who knows Justice Kennedy the man describe him as mercurial. I got to know Justice Kennedy when I served as one of his four law clerks in the October 1991 term. He did not relish, but neither did he recoil from, the power he and his colleagues exercised over the nation.
Justice Kennedy was also comfortable exercising power in chambers. He was a gentle boss, who never raised his voice or made unreasonable demands — which is not to say that he did not demand top-quality work of himself and his staff. He respected tradition, but also valued a certain kind of informality. One of his work habits illustrates the point.
As a law clerk on the U.S. Court of Appeals for the 9th Circuit, I had grown accustomed to writing bench memoranda on the cases for which I was tasked to assist. As the Supreme Court term began, Justice Kennedy told us law clerks that he didn’t want bench memos, because he would read the briefs himself. We were to compile loose-leaf notebooks containing the most relevant Supreme Court precedents for each case. Justice Kennedy also instructed us to make audio recordings of our thoughts so he could listen to them on his drive into work each morning. That should have been easy for me. After all, I had been an extemporaneous debater in college. Yet I was flummoxed by this assignment. For some reason, sitting at my desk alone, I could not just talk into a microphone. I solved the problem, I thought, by writing a short bench memo and then recording myself reading it. That was not what Justice Kennedy wanted, but he was too kind to tell me as much, so he asked me if instead of making recordings I could just talk to him about the cases. I readily agreed, although it meant that he would gleefully pepper me with tough questions as I talked. To this day, I model my Socratic teaching on the kinds of questions he asked.
Justice Harry A. Blackmun, who was counsel for the Mayo Clinic before becoming a judge, almost became a doctor rather than a lawyer. I have sometimes wondered what career path Justice Kennedy would have followed had he not been a successful lawyer, then judge, then justice. Politics would have been a possibility. He can work a room, he can give a heck of an after-dinner speech, and he was a successful lobbyist in California. His moderately conservative libertarianism would have made him a formidable candidate for governor of his home state and then perhaps even the presidency.
In yet another parallel universe, Justice Kennedy would have been a high-school history or civics teacher. Seeing him as a teacher does not require any great act of imagination. Both before and after becoming a justice, he taught constitutional law at the McGeorge School of Law in Sacramento and at the school’s summer program in Salzburg, Austria. Justice Kennedy especially enjoys talking to still-younger audiences. He can boil an issue down to its core without dumbing it down.
In a sense, Justice Kennedy was a teacher even in his role as a justice. His critics sometimes point to those of his opinions that do not strictly conform to hornbook categories as evidence of a kind of sloppiness or even lawlessness. In Romer v. Evans, Justice Kennedy wrote for the Supreme Court that a Colorado ballot initiative stripping localities of the power to protect gays and lesbians against sexual orientation discrimination “defies” the conventional threshold equal protection inquiry into whether a law triggers heightened scrutiny. The provision’s “sheer breadth,” he wrote, “is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects.” Critics, including the dissenters, pointed out that under conventional rational basis scrutiny, courts do not inquire into the actual motives of lawmakers. They asked what was wrong with animus anyway, so long as it was not based on an invidious classification.
Was Justice Kennedy incapable of applying the doctrinal framework? Hardly. He is a master of legal classification. During my clerkship, as Passover approached, I asked Justice Kennedy whether he would be willing to “purchase” my bread products (“chametz”) in keeping with a Jewish tradition. He had never encountered this practice before and, after happily agreeing, began a discussion of the fine distinction between legal formalities and legal fictions. I do not remember all of the details, but I am sure they involved the sale of Blackacre for a peppercorn.
What Justice Kennedy’s critics miss about those of his opinions that operate outside of the doctrinal pigeonholes is his understanding of the Supreme Court’s role as expositor of the nation’s fundamental values. Sometimes it is important for the court to draw fine distinctions for lower courts to apply. At other times, however, the People are the primary audience for the court’s rulings. Justice Kennedy’s most important opinions spoke directly to the People.
The message he conveyed was simple but potent. Professor Ronald Dworkin famously argued that, contrary to a commonly held view, liberty and equality, each properly conceived, do not conflict. Justice Kennedy did not go quite that far. He recognized that life and law sometimes present tragic choices. Still, his work on the Supreme Court gestured in Dworkin’s direction in reconciling liberty and equality, indeed, in recognizing, as he put it in Obergefell v. Hodges, a “synergy” between the two.
“The Framers split the atom of sovereignty,” Justice Kennedy famously wrote in a 1995 concurrence praising the “genius” of federalism as a means for serving and protecting the People. His own genius is the mirror image. In his opinions reconciling liberty, equality, and other core values, Justice Kennedy fused the nuclei of disparate constitutional elements into a coherent whole.