A dive into Justice Kennedy’s new memoir

Retired Justice Anthony Kennedy’s memoir, Life, Law and Liberty, comes out today, Oct. 14. Within the next few weeks, SCOTUSblog will publish a review of the book. To whet readers’ appetites, however, below are several interesting passages from it (or, at least, passages that I found to be interesting), including reflections on originalism, Kennedy’s most controversial cases, abortion, Vladimir Putin, and music.   

On judicial decision-making:

Let’s begin with judicial decision-making. Throughout his memoir, Kennedy stresses the value of judicial humility and integrity in deciding cases, and he emphasizes that the “Court earns its respect not because its decisions are always going to be right but by making difficult decisions in proper, thoughtful ways.” According to Kennedy, this is especially important in close cases, where “what it must strive to do is come to those results in good faith, in a right and proper way, and with clarity so that citizens can understand the reasoning.” Kennedy is also clear that justices will not always know when they might be wrong: “in retrospect … that is what happened to me regarding the execution of minors.”

On originalism, pragmatism, and the Constitution:

Unlike many current members of the court, Kennedy is not a self-described originalist. Nor, unlike Justice Stephen Breyer, is he a pragmatist. Although Kennedy acknowledges the strengths of both judicial philosophies, he ultimately rejects them as unsatisfactory.

As he explains with regard to originalism, “some principles are not necessarily formulated in the words of the Constitution without considering the broader context.” Kennedy notes that “[i]n cases where the text does apply, the original meaning is of course instructive. But, in my view, a judge cannot simply pluck an old dictionary from the wall and find the answer inside.”

With regard to pragmatism, Kennedy states that this “may be too unclear to give helpful guidance, especially since it often is simply a way to implement some other philosophy or reach a certain desired end.”

Although Kennedy does not offer a concrete judicial philosophy in response, he states near the book’s end that with regard to constitutional interpretation “it seems correct to say that, over the arc of time, the right answers can and will continue to be found. This does not mean that the Constitution changes. It just means that we have found a better perspective through which to interpret it.”

On various cases:

Throughout his time on the court, Kennedy wrote some of its most important cases. In the book he discusses several of these.

Citizens United:

Perhaps none of Kennedy’s opinions are as controversial (at least on the left) as Citizens United v. Federal Election Commission. There, a 5-4 court barred certain government limits on campaign spending by corporate interests. In his memoir, Kennedy recognizes that “all of us are concerned with money in politics. But our role was to rule on the constitutionality of a specific piece of legislation passed by Congress.” The justice was particularly disturbed by the government’s position that “if there was an upcoming political campaign and a book was being published, or a movie was being produced, and it was critical of a candidate, then it could stop publication if funded by a corporation.” To Kennedy, “[i]n these campaign finance cases, the voters are the ones with the true power. If they see money coming into campaigns from sources they do not like, they can demand disclosure, and they can choose to vote against the candidate.”

Obergefell v. Hodges:

In Obergefell v. Hodges, Kennedy wrote the opinion for a 5-4 majority holding (for those of you living under a well-fortified rock) that the Constitution guarantees a right to marry for same-sex couples. According to the justice, in deciding Obergefell, he spent a great deal of time studying “the whole history of religious, cultural, and social views on marriage.” This led Kennedy to recognize the changing nature of marriage over time. Particularly important to the justice, however, was that, “[a]t the time of Obergefell, various statistics disclosed that hundreds of thousands of children were being raised by gay couples … were the children not themselves demeaned by the refusal to recognize their parents’ union?”

On a more personal note, Kennedy writes about the fall-out between Justice Antonin Scalia and him resulting from this decision. In particular, he focuses on Scalia’s “rare personal attack, against me as the author of the opinion,” including the line that “it would be inaccurate to call me a true Westerner because ‘California does not count.’” According to Kennedy, “[w]hile this weakened [Scalia’s] opinion, enabling me to shrug it off … my children and their spouses were devastated by the tone of the dissent. In addition, my colleagues were conscious of a dissent that was out of bounds.”

Kennedy explains that “[e]ven before Obergefell, for a year or so, Justice Scalia—Nino—had seemed restive, perhaps even unhappy at the Court,” which Obergefell made even “more obvious.” Several months after the case was decided, Scalia stopped coming to lunch or stopping by to chat. “The rest of us were troubled by this.” Finally, in early February of the next year, Scalia paid Kennedy a visit, in which “Nino said he had come to regret deeply the tone of his Obergefell dissent and its personal references. He apologized for being intemperate. We both smiled, and the matter was resolved.”

This “reconciliation conversation” turned out to be their last: Shortly over a week later, Scalia passed away.

Bush v. Gore:

When asked about Bush v. Gore, Scalia would tell critics to “get over it.” In his book, Kennedy is considerably less abrasive (shocking, I know). He notes that the court “had only twenty-four hours to write, vote upon, and issue opinions in [the] case.” He further stresses that it was integral to focus on the legal issues, and to have his “clerks know that for me the fact that Gore or Bush might prevail was not relevant in any political or practical sense.” Rather, “[w]hat mattered was for the Court to reach the right result and show that it had considered the legal issues, not which candidate was our preferred choice.”

Texas v. Johnson:

Recently, the case of Texas v. Johnson has been back in the news as a result of an executive order by the Trump administration on prosecuting flag burning. In Johnson, the court held 5-4 that states cannot enact blanket bans on desecrating the flag because, under some circumstances, this is protected by the First Amendment. Kennedy concurred with the majority but admits that this was a difficult case: “The case required the Court, and the country, to grapple with the hard reality of unalienable rights. That reality is that we pay a price for freedom. The price we pay for protecting expression is that we must put up with it when it shocks or offends.”

On being a swing justice:

Due to his position in the court’s middle, Kennedy was often referred to as its “swing justice”; that is, whatever way he swung determined the outcome of the case. In his memoir, Kennedy notes his distaste for this term (also recently expressed by Justice Amy Coney Barrett): According to Kennedy, “While I did not pay much attention to the media reports about our work, it would be disingenuous to deny being called the ‘swing’ justice by the press. That term always bothered me. The cases swung, not me.”

On abortion:

Based on his upbringing and religious values, Kennedy states that he understood “[a]bortion was wrong. For us, it was not and is not an option.” He notes, however, that “a moral wrong does not necessarily make for a legal wrong, nor do my own personal views control what I must decide as a judge.”

Kennedy writes that this conflict led him to question whether he should remain on the court. After contemplating this “in private and without discussion with others,” he decided to do so. In Kennedy’s view, resigning “would have been to say that the judicial oath to protect constitutional rights is not binding in difficult or controversial cases. And as a practical matter, in those times, it was possible that my successor would be less concerned about protecting the unborn.”

On presidential deference to the Supreme Court:

In Life, Law and Liberty, Kennedy barely mentions President Donald Trump (though he has done so a bit more in recent interviews). In one passage, Kennedy briefly outlines what he believes to be the proper relationship between the president, the Constitution, and the court. According to Kennedy, “Presidents have the duty, and personal obligation, to make judgments based on a good-faith interpretation of the Constitution, but they must also give proper deference to Supreme Court rulings.”

On meeting Vladimir Putin:

Kennedy details how some years back he traveled to Russia for an international law conference, and Putin himself asked to see him. At one meeting the two discussed capital punishment. The Russian president remarked there “would be no capital punishment in Russia,” and then, according to Kennedy, “leaned across the table” to share the following: “I have sat across a table from murderers, closer to them than I am to you. And I could have strangled them with my own hands.” Kennedy writes that “[i]t seemed to me the interpreter hesitated a bit, leaving me to wonder if he substituted ‘could have’ for ‘did.’” This “chilling moment” reinforced the justice’s “impression of Putin as fearless in imposing his own will, using the law only if convenient.” 

On cameras in the courtroom:

Commentators for SCOTUSblog have expressed different views on cameras in the courtroom. In his memoirs, Kennedy makes his own view on this issue crystal clear: “We consistently oppose the idea.” This is because the court does “not want to risk the potential disruption to the current dynamic between the justices and the lawyers.” Kennedy believes that “[w]ere there to be cameras, it is human nature to suspect that someone, justice or lawyer, may be entering the discussion for a sound bite, to impress the audience, or to look good to the folks at home. That would intrude on the substantive nature of the discussions. We must be judged by what we write. We should not be judged by what we say at argument.”

On the Manson family:

In one passage of the book, Kennedy describes, as a judge, having declined to lower the bail of Manson family member Lynette “Squeaky” Fromme. Sometime thereafter, shortly before Christmas that year, Kennedy’s family came home to discover their house had been ransacked. Among other things, “the Christmas tree was turned over,” and “[o]bscene things had been done to [his daughter’s] favorite doll; blood was on [his wife’s] pillow with an ax underneath; our figurines of the three wise men had been beheaded; the children’s Christmas presents had been unwrapped and strewn with filth.” Although they “found no real proof of the whether these crimes were related to the Fromme case … police suspected they were.”

On music:

Kennedy and I have slightly different tastes in music. In an eye-opening part of his memoir, he writes:

“Like many, we thought our children’s music, like the Rolling Stones, Tom Petty, Blondie, AC/DC, and Lynyrd Skynyrd, was avant-garde and too loud.”

I’ll conclude with this: We can disagree in good faith on the strength of Justice Kennedy’s jurisprudence. But we can all agree, I hope, that considering Tom Petty “avant-garde” is a serious lapse in judgment.