X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Two short years ago, the buzz in Washington was that if Chief Justice William Rehnquist retired, Justice Anthony Kennedy had a good shot at replacing him. Kennedy was seen spending quality time with first lady Laura Bush on a civic education initiative Kennedy launched in the wake of the Sept. 11 terrorist attacks. He was speaking out on drugs and prison sentences, and his former law clerks were well-placed in Bush administration jobs. But then came June 2003 and Kennedy’s majority opinion in Lawrence v. Texas, which struck down sodomy laws and breathed new life into the gay rights movement. Last week, Kennedy did it again. In a stunning reversal for the Court and himself, Kennedy led the Court in striking down the juvenile death penalty. Writing for the 5-4 majority in Roper v. Simmons, Kennedy cited social science research on adolescents and the strong worldwide consensus against the practice. Nobody is talking about Anthony Kennedy for chief justice anymore. Instead, conservatives and others whom Bush might have counted on for support for Supreme Court nominations took turns lashing out at Kennedy’s opinion in terms usually reserved for the likes of the late liberal justices Harry Blackmun and William Brennan Jr. “Increasingly over the years, Kennedy has disappointed conservatives, but this decision is so pernicious and dangerous that it will bring our disappointment with him to a whole new level,” says Gary Bauer, president of American Values and a former Republican presidential candidate. “I don’t see anything in the oath of office he took that would open his deliberations to that area.” Bauer was referring to the foreign legal sources Kennedy cited in Roper. The Wall Street Journal attacked the decision as a “legislative diktat in the guise of a legal decision,” and added, “If there is a silver lining to this case, it is that it probably disqualifies Justice Kennedy from any consideration to be promoted to Chief Justice.” And from the bench, Justice Antonin Scalia, a conservative icon, was nearly apoplectic about Kennedy’s opinion, decrying it as an “indefensible” example of judges substituting their views for those of elected officials: “The Court thus proclaims itself sole arbiter of our nation’s moral standards.” That viewpoint reverberated in Congress, where Kennedy’s opinion re-energized efforts by Rep. Tom Feeney, R-Fla., to pass a resolution against using foreign court decisions in judicial opinions. “This is a clear-cut example of policy-making from the bench,” said a statement from Rep. Steve Chabot, R-Ohio, who supports the resolution and chairs the House Judiciary Subcommittee on the Constitution. As a result of the ruling, Kennedy may even be replacing Justice David Souter in the minds of conservatives as Exhibit A for the proposition that the leanings of the next justice must not be left to chance. President Ronald Reagan picked Kennedy in 1987, after the nominations of Robert Bork and Douglas Ginsburg collapsed. “This shows how enormously significant it is whether you get a Kennedy or a Bork. It isn’t just one or two cases over the next 10 years,” says conservative Court-watcher Bruce Fein, a former Justice Department official in Republican administrations. “Kennedy is sort of a trial run of what the difference between having an authentic conservative and a pastel version of a conservative means for constitutional law.” This criticism of Kennedy for betraying his conservative roots is reaching new levels in the wake of Roper, but it has dogged him at other times during his tenure on the Court. Early on, when critics compared Kennedy to Blackmun, who was perceived to have gotten more liberal over time, Blackmun wrote Kennedy a note reassuring him, “Don’t worry, it’s not fatal.” Even before the Texas sodomy case, Kennedy wrote Romer v. Evans in 1996, a precursor ruling that barred singling out gays for disfavored treatment. Kennedy was part of the trio that rescued Roe v. Wade in Planned Parenthood v. Casey, a 1992 case. His First Amendment rulings have won praise from liberals, and some of his positions in church-state cases have angered the Christian right. Pepperdine University School of Law professor Douglas Kmiec says he saw early signs that Kennedy was “softer on some of the hard issues.” Kmiec headed the Justice Department’s Office of Legal Counsel when Kennedy, then a judge on the 9th Circuit, was being vetted for the nomination; Kmiec read Kennedy’s Circuit opinions extensively. “I was present at the creation,” Kmiec says. “He was third on the list for a reason.” But after Bork was defeated and Ginsburg withdrew, the White House was eager to nominate a winner, and Kennedy, a one-time Sacramento, Calif., lawyer and lobbyist, had strong connections with Reagan aides. “The decision was made to look past these philosophical differences,” says Kmiec. The Senate confirmed Kennedy unanimously in February 1988. Nonetheless, over the years, Kennedy tacked back to the conservative side often enough in criminal cases and elsewhere to remain on the Republican radar screen for chief justice. In the 2000 case Stenberg v. Carhart, Kennedy voted in favor of a law banning partial-birth abortions, though he was in dissent. He also dissented from the 2003 majority decision in Grutter v. Bollinger, which upheld affirmative action. And last week, in oral arguments a day after the decision in the juvenile death penalty case, Kennedy seemed ready to vote in favor of Ten Commandments displays in public places. He pointedly criticized society’s “obsessive concern with any mention of religion.” How can Kennedy’s jurisprudence be explained? “He wants the Court to be on the right side of history. He wants to be on the right side of history,” says Edward Lazarus, a former Blackmun law clerk who was critical of Kennedy in his 1998 book “Closed Chambers,” but now finds more to like. “The ghosts of Earl Warren and William Brennan live in Tony Kennedy.” The longer Kennedy has been on the Court, Lazarus says, the more comfortable he has become in using judicial power to rule, in an almost romantic way, “as he thinks a great judge should rule.” Once in Scalia’s orbit, Kennedy is now repelled by his stridency, Lazarus asserts. “Kennedy is the compassionate conservative on the Court,” though not the kind that appeals to Bush, Lazarus adds. In addition, by now, Lazarus speculates that Kennedy, who is 68, “has got to figure he’s not in the running anymore” for chief justice. “So maybe he’s playing for posterity. He wants someone to say 50 years from now that he was one of the great justices of the late 20th century.” But Kennedy fans reject the view that he is currying favor with history or imposing his own grandiose vision on society. “It’s hard to believe that his own views on the juvenile death penalty have changed” since he voted for it in 1989, says Columbia University law professor Michael Dorf, an early Kennedy clerk. “I think he was persuaded by the consensus against it. It was not Kennedy imposing his own values. He was looking outside himself.” Another former Kennedy clerk, who declined to be named, adds, “He is an independent thinker. He is not above re-examining his views, and that’s a good thing. He’s no Blackmun.” Pepperdine’s Kmiec says, “Every justice writes for the history books, but hopefully not for vainglory. Justice Kennedy wants to get it right.” Kmiec disagrees with Kennedy’s rulings when they are “not rooted in text,” but adds, “He is a justice of intellectual integrity. Some people will never forgive him for particular outcomes, but I think he tries to read the Constitution in a way that is largely consistent with a conservative trajectory.” Some see Kennedy’s fondness for international law as a byproduct of his frequent involvement with foreign legal programs, including an annual pilgrimage to Salzburg, Austria, where he has taught at the McGeorge School of Law’s summer programs for decades. “It’s not that he doesn’t want to be shunned at the cocktail parties,” says Columbia’s Dorf. “It’s that he thinks, in a grand policy way, that the United States should not be a laggard with respect to human rights.” Others last week were ascribing Kennedy’s “evolution” to the hydraulic pressure to the left exerted by D.C.’s cultural and media elites — even though Republicans are in charge. When senior D.C. Circuit Judge Laurence Silberman once labeled the phenomenon as it relates to judges as the “Greenhouse effect” — a reference to presumed liberal New York Times reporter Linda Greenhouse — he had Kennedy in mind. “It’s a well-defined trend in D.C.,” sighs Bauer. “You come here and you ‘grow,’ which always means you move to the left. It may be nothing more than that with Kennedy.” Not so, Kennedy fans counter, noting that decisions like the Texas sodomy case and the juvenile death penalty bring him scorn, not plaudits, from his peers. “The circles in which he travels are fairly conservative,” says Dorf. “They’re more likely to be disappointed in him.” As an example, Dorf recalls the last reunion of Kennedy law clerks in 2003, not long after the Lawrence decision came down: “I looked around and could count on the fingers of one hand the liberals in the room. Most [of his clerks] were quite disappointed in Lawrence.”How does Kennedy handle a situation like that? Dorf replies, “He says, ‘Look, we disagree,’ and moves on.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.