Judging Justice Kennedy

Damon W. Root | August 28, 2009

Northwestern University law professor John McGinnis has an interesting review of Frank Colucci's new book Justice Kennedy's Jurisprudence in today's Wall Street Journal. As McGinnis reports, Colucci identifies Kennedy's "moral reading of the Constitution" as the key to understanding his votes on the Supreme Court, arguing that Kennedy "sees the document as an unfolding story of ever greater individual liberty":

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.

Rest here.

Political scientist Helen Knowles makes a similar point about the intellectual coherence of Kennedy's views in her book The Tie Goes to Freedom: Anthony M. Kennedy on Liberty, which I reviewed back in March. As Knowles provocatively argues, when it comes to free speech, race-based classifications, gay rights, and abortion, Kennedy's jurisprudence qualifies as "modestly libertarian." But Kennedy also voted to uphold New London, Connecticut's disastrous use of eminent domain in Kelo v. City of New London and sided with federal anti-drug enforcement over state medical marijuana legalization in Gonzales v. Raich, both of which place pretty severe limits on his respect for liberty.

Comments

Kyle|8.28.09 @ 12:30PM|#

Kennedy is interesting not because he is interesting per se, but because he is powerful. In 2008-09 term, of the 23 5-4 decisions, he was the swing vote in 18.

In the foreseeable future, Kennedy will be the Court on close decisions. Barring unforseen departures/deaths, Kennedy will remain this powerful until at least 2012 (or 2016 if Obama is relelected).

This assumes that only Stevens and Ginsburg would step down in the next seven years to be replaced by new, similar liberals.

Mad Max|8.28.09 @ 12:31PM|#

OK, guys, can I discuss abortion now?

؟ Of course, it is truly shocking that I would mention abortion in a thread devoted to the jurisprudence of one of the 'swing justices' in the *Casey* case - the case which reaffirmed that abortion is a constitutional right. ؟

And there's this from the linked article:

'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.'

The article cites Dignitatis humanae and immediately mentions a death-penalty case. But Dignitatis humanaeis about religious freedom and does not address the issue of the death penalty for murderers. Perhaps the aurthor was thinking about Evangelium Vitae, which addresses the death penalty as follows:

'It is clear that, for these purposes to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.

'In any event, the principle set forth in the new Catechism of the Catholic Church remains valid: "If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person".'

Unfortunately for Kennedy, Evangelium Vitae goes on to say:

'If such great care must be taken to respect every life, even that of criminals and unjust aggressors, the commandment "You shall not kill" has absolute value when it refers to the innocent person. And all the more so in the case of weak and defenceless human beings, who find their ultimate defence against the arrogance and caprice of others only in the absolute binding force of God's commandment. . . .

'Faced with the progressive weakening in individual consciences and in society of the sense of the absolute and grave moral illicitness of the direct taking of all innocent human life, especially at its beginning and at its end, the Church's Magisterium has spoken out with increasing frequency in defence of the sacredness and inviolability of human life. The Papal Magisterium, particularly insistent in this regard, has always been seconded by that of the Bishops, with numerous and comprehensive doctrinal and pastoral documents issued either by Episcopal Conferences or by individual Bishops. The Second Vatican Council also addressed the matter forcefully, in a brief but incisive passage.

'Therefore, by the authority which Christ conferred upon Peter and his Successors, and in communion with the Bishops of the Catholic Church, I confirm that the direct and voluntary killing of an innocent human being is always gravely immoral.'

After boasting of the Catholic influences in Kennedy's jurisprudence, the author cannot then turn around and utter the usual excuse used in defends pro-abortion Catholics, that they shouldn't let their Church's views influence their public behavior.

T|8.28.09 @ 12:42PM|#

"modestly libertarian."

Or, alternatively, mostly statist.

Kyle|8.28.09 @ 12:49PM|#

Why are pro-abortion catholics so frequently disparaged?

Why don't anti-abortion catholics get their undies in a bunch about other (all) members of the church that don't follow church teaching on, for example:
-taking eucharist without first going to confession
- getting divorced
- engage in pre-marital sex
- take their lord's name in vain
- fail to honor the sabbath
(you get the idea)

There is a reason that Catholics, perhaps more than most other religions, encompass such a large ideological spectrum: being Catholic does not mean much doctrinally any more.

|8.28.09 @ 12:49PM|#

Friday, August 28, 2009
"I don't know if you know this or not, but one of his favorite topics of humor was indeed Chappaquiddick itself."

"And he would ask people, 'have you heard any new jokes about Chappaquiddick?' That is just the most amazing thing. It's not that he didn't feel remorse about the death of Mary Jo Kopechne, but that he still always saw the other side of everything and the ridiculous side of things, too."

Different Kennedy, but did anyone else hear about that little gem from Ed Klein on NPR this morning?

$|8.28.09 @ 12:59PM|#

There are no "different Kennedys."

T|8.28.09 @ 1:00PM|#

Why don't anti-abortion catholics get their undies in a bunch about other (all) members of the church that don't follow church teaching on, for example:

The one that gets me are the pro-death penalty Catholics. Abortion: bad! Execution: good! Wait, what? Doctrinally, they're almost equivalent.

|8.28.09 @ 1:04PM|#

"The one that gets me are the pro-death penalty Catholics. Abortion: bad! Execution: good! Wait, what? Doctrinally, they're almost equivalent."

They are certainly not morally equivelent. I am not a Catholic, but I certainly see the difference between giving some murderer the needle and pulling a six month old baby out of the womb and sucking its brain out.

Mad Max|8.28.09 @ 1:07PM|#

'Why don't anti-abortion catholics get their undies in a bunch about other (all) members of the church that don't follow church teaching on, for example:
-taking eucharist without first going to confession
- getting divorced
- engage in pre-marital sex
- take their lord's name in vain
- fail to honor the sabbath
(you get the idea) '

We have - you just haven't been paying attention. Contact Thomas Peters, who runs the American Papist blog, and pose the same question to him. His email is thomas[at]americanpapist.com

Mad Max|8.28.09 @ 1:12PM|#

'There is a reason that Catholics, perhaps more than most other religions, encompass such a large ideological spectrum: being Catholic does not mean much doctrinally any more.'

I can see a future John Cornwell writing a book about Benedict XVI, called *The Abortionist Pope.* This book will argue that Pope Benedict was actually pro-abortion, and the evidence will the of the same sort as the evidence used today to show that Pope Pius XII was "Hitler's Pope."

Specifically, our future Cornwell will point out Pope Benedict's failure to excommunicate Justice Kennedy and Nancy Pelosi.

The fact that the pro-abortionists are vehement enemies of Pope Benedict of the Catholic Church will cut no mustard with the Cornwells of the future. After all, the fact the Pius XI and Pius XII, as well as the institutional Catholic Church in general, were vehemently denounced by the National Socialists, doesn't stop modern critics from claiming that the Catholic Church was favorable to National Socialism.

T|8.28.09 @ 1:13PM|#

They are certainly not morally equivelent. I am not a Catholic, but I certainly see the difference between giving some murderer the needle and pulling a six month old baby out of the womb and sucking its brain out.

Being lazy, I'll punt this one over to Mad Max. Short answer: it is not for us to decide the fate of a human life. Ever.

Kyle|8.28.09 @ 1:14PM|#

"We have - you just haven't been paying attention."

I know that I've seen numerous catholic-lead protests at our local abortion clinic. I have yet to see on the news a protest outside the college bar next to our local catholic college wherein young couples meet for eventual copulation.... ***(writer quietly drifts off to fond memories of alcohol induced copulation)

|8.28.09 @ 1:18PM|#

He was on the right side of Heller, I'll give him that.

Mad Max|8.28.09 @ 1:22PM|#

'Why don't anti-abortion catholics get their undies in a bunch about . . .
- getting divorced
- engage in pre-marital sex '

؟ You got me there. If only I had criticized divorce, fornication and illigetimacy, I might have more credibility on life issues. ؟

|8.28.09 @ 1:25PM|#

Specifically, our future Cornwell will point out Pope Benedict's failure to excommunicate Justice Kennedy and Nancy Pelosi.

I don't know much about the Pope, Max, but why do you think he won't excommunicate them? Has he succumbed to the Age in which he lives? NOt setting you up, just wonder your opinion.

|8.28.09 @ 1:26PM|#

It would be friggin' awesome if he excommunicated Teddy (same reason, I presume)before he's in the ground.

The Angry Optimist|8.28.09 @ 1:31PM|#

hort answer: it is not for us to decide the fate of a human life. Ever.

Even in self-defense?

Mad Max|8.28.09 @ 1:33PM|#

'I don't know much about the Pope, Max, but why do you think he won't excommunicate them? Has he succumbed to the Age in which he lives? NOt setting you up, just wonder your opinion.'

You'd have to ask the Pope. These things are usually reserved to the local bishops, and the bishops in the U.S. have not been (how can I say this politely) thoroughly zealous for the Catholic faith.

Let me ask you this: Is Benedict XVI the 'abortion Pope' for his failure to excommunicate? Will future generations judge him to be a pro-abortionist?

Mad Max|8.28.09 @ 1:36PM|#

Kyle and T,

The destruction of human life *is* a more urgent issue than acts which do not, in themselves, directly destroy a human life. Not that non-life issues are unimportant, but you can certainly understand why the destruction of innocent human life, under the guise of 'constitutional rights,' at clinics which are often government-subsidized, provides a degree of moral urgency which is lacking in the case of certain other sins.

Not that the Church overlooks other sins. In my campus parish in New York, I heard the priests give many sermons against the kind of sins which (I hear) college students are tempted towards.

Kyle|8.28.09 @ 1:37PM|#

My point is that citing catholocism is irrelevant in support of a point against abortion. It is irrelevant because catholics fail to cite a reason why this particular transgression is any worse than other catholic transgression engaged in by catholics on a daily basis.

Oh, and I don't really follow the abortion debate, but I was under the impression that the election of Obama and corresponding public opinion had put this issue to rest.

The Gobbler|8.28.09 @ 1:38PM|#

"Being lazy, I'll punt this one over to Mad Max. Short answer: it is not for us to decide the fate of a human life. Ever."

Speak for yourself.

T|8.28.09 @ 1:44PM|#

I don't know much about the Pope, Max, but why do you think he won't excommunicate them?

I welcome Max's input on this one as well, but it's my understanding that formal, announced excommunication is almost never done anymore except in the case of preaching heresy. That's done mainly so others will not get the impression the ex-communicant is speaking with any authority on doctrinal issues.

Paul|8.28.09 @ 2:08PM|#

If you try to follow a "favorite" judge, you'll never be entirely happy.

Mad Max|8.28.09 @ 2:24PM|#

Another point to make is that excommunication is *automatic* for anyone who procures an abortion.

Mad Max|8.28.09 @ 2:26PM|#

'Oh, and I don't really follow the abortion debate, but I was under the impression that the election of Obama and corresponding public opinion had put this issue to rest.'

By the same token, Obama's election settled the issue of whether we should have a free market. The voters clearly answered 'no,' and their verdict as been interpreted as a thorough repudiation of 'free market fundamentalism.'

Who says A must say B.

Mad Max|8.28.09 @ 2:28PM|#

Canon 1398 of the Code of Canon Law provides that 'A person who procures a completed abortion incurs a latae sententiae excommunication.' Whether that applies to politicians, ask someone better informed.

Kyle|8.28.09 @ 3:01PM|#

"Who says A must say B."

Perhaps, but honestly, hasn't the tenor of this debate changed? I really seems, as a casual observer, that leaving aside the occasional shooting by a pro-lifer, there is less vitriol in this debate.

Maybe thats not the case, but thats my impression.

Mad Max|8.28.09 @ 3:09PM|#

'I[t] really seems, as a casual observer, that leaving aside the occasional shooting by a pro-lifer, there is less vitriol in this debate.'

Didn't you get the memo? Those who assassinate abortion doctors are simply the id of the pro-life movement, and no amount of disavowals by pro-life leaders can change this. Anyway, that's the message you get from the Obama supporters, and they should know, since according to you, they are the ones who put the abortion issue to rest.

The election of 1852 was supposed to put the slavery issue to rest. Both major parties (Whig and Democrat) denounced slavery agitation. They at least had an excuse - a genuine compromise had been passed in 1850, in an honest effort to make the country move beyond slavery. What kind of abortion compromise have the Obamanauts agreed to? That is, which of their cherished principles have they been willing give up for the sake of resolving the abortion dispute?

? And by the way, when is Quentin Tarantino going to do his movie glorifying Scott Roeder? ؟

Kyle|8.28.09 @ 3:25PM|#

I think the best comprimise for a religiously minded pro-lifer would be this:

If you [pro-lifer] agree to shut your pie-hole, we [individuals receiving and promoting abortion] will accept the risk that this action will result in an eternity of hell flame, while you make merriment in heaven with my unborn zygote.

Seems like a reasonable comprimise to me.

Mad Max|8.28.09 @ 4:28PM|#

Kyle,

I guess you didn't get the memo, either.

Haven't you heard - the pro-aborts are pushing the idea that the decision to abort your child is agonizing and heartrending, and that it's not something that any woman would do lightly. In fact (so we're told by the pro-aborts), the pro-lifers are spreading the totally unfounded idea that women abort frivolously, as if they were simply having an appendectomy.

Now you seem to be playing into the hands of us pro-lifers, by making it seem like abortion is not something to agonize about. Your attitude is *so* seventies, dude! Get with the program, if you want to keep up with the pro-abortion Joneses.

Elemenope|8.28.09 @ 4:42PM|#

Mad Max,

You are serial abuser of the sarcasm mark.

qwerty|8.28.09 @ 11:00PM|#

Kennedy is not a libertarian. He's a moderate conservative, more of the "pragmatic" wing than the "idealistic" wing. I find his opinions rather unimpressive, just like O'Connor. As Kyle pointed out, the only reason why anyone cares what he thinks is because he is the swing vote.