Supreme Court

Assessing Justice Kennedy's Legacy

A Politico symposium offers assessments by a wide range of legal scholars and commentators. And I offer some additional thoughts of my own.

|The Volokh Conspiracy |

Justice Anthony Kennedy

Supreme Court Justice Anthony Kennedy retired earlier today, a move that has major implications for the future of the Court. But Kennedy also had a massive impact on the Court's jurisprudence over his thirty year tenure, particularly during the last twelve years, when he was the key swing voter on many issues. Politico recently published a symposium on Kennedy's legacy, with commentary by numerous legal scholars and commentators. Here's an excerpt from my contribution:

Justice Anthony Kennedy leaves behind a mixed legacy. It includes elements that appeal to both sides of the political spectrum. Kennedy's most famous and influential opinions are probably his rulings in four landmark gay rights cases: Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and—most of all—Obergefell v. Hodges, which struck down laws banning same-sex marriage. He was a key figure in the rapid progress gays and lesbians have made towards legal equality over the last 25 years. But Kennedy also wrote opinions or provided key votes for numerous "conservative" outcomes, particularly in free speech, affirmative action and federalism cases….

Kennedy's methodology was just as eclectic as the political valence of his opinions. In some cases, he relied on vague and fuzzy standards that made it difficult to figure out exactly what rule his decision establishes or why. Obergefell (despite my agreement with the result) was a notable example. But there are many other Kennedy opinions that are much more rigorous and formal, as in his free speech jurisprudence.

Kennedy's greatest strengths were his staunch political independence, and his genuine commitment to liberty and equality for people of widely differing backgrounds and views….

It was interesting to see the wide range of perspectives in the symposium, particularly among the liberal participants. Some of them take a very positive perspective on Kennedy's legacy, while others are much more negative.

At this point, we may not have enough historical distance from Kennedy to properly assess his impact. We may have a very different view twenty or thirty years from now than we do today. Nonetheless, my tentative assessment is that Kennedy's judicial philosophy was not especially impressive, but he nonetheless did a great deal of good when it comes to specific legal doctrines. From a libertarian perspective, it may even be that no other modern Supreme Court justice has done as much good as he did.

When it comes to methodology, Kennedy was—as I suggested in the symposium, highly inconsistent. The problem is not just that he used different methods in different cases, but that he never gave much indication why he relied on formalist and textualist arguments in some situations, but a very different approach in others. Some of his fuzzier opinions have drawn criticism even from many who agreed with the results. For example, I was happy to see the result in Obergefell, but was not impressed with its somewhat muddled reasoning.

But when it comes to specific cases and doctrines, Kennedy often moved the Court in beneficial directions. Many participants in the symposium correctly note his crucial role in the gay and lesbian rights decisions. Without his work, this long-oppressed minority might have remained second-class citizens for considerably longer. That certainly would have been the case had President Reagan appointed a more conventional conservative in 1988, and especially if the Senate had confirmed Robert Bork (whose 1987 defeat led to Kennedy's nomination). I believe he should have reached the results he did in those cases by clearer and more logically coherent routes. But reach the right results he did.

As Ilya Shapiro of the Cato Institute points out in the Politico symposium, Kennedy was probably the most speech-protective justice in the history of the Supreme Court. He consistently voted to strike down both those speech restrictions favored by the left (such as campaign finance regulations) and those promoted by the right (such as restrictions on flag-burning and sexually explicit speech). Kennedy was a major figure in strengthening protection for freedom speech across the board, and his opinions in this field are, on the whole, far more coherent and well-thought out than the ones on gay and lesbian rights. Here too, Kennedy was far better than Bork (who had a very narrow conception of freedom of speech) probably would have been.

With one notable exception discussed below, Kennedy also consistently voted to strengthen judicial enforcement of structural constraints on federal power. That was an important and valuable doctrinal trend that accelerated during the Roberts Court, in large part thanks to Kennedy's support. His opinions in this field, like speech, were usually well-thought out and carefully reasoned. That includes some lesser-known cases, such as Bond v. United States I, which I analyzed here. In that case, Kennedy managed to secure unanimous support for the crucial proposition that federalism constraints on national power are meant to protect individual citizens, not just state governments. Liberals decried many of his federalism decisions at the time. But they may have reason to thank him now, when some of these rulings are crucial to their efforts to protect sanctuary cities and otherwise combat the Trump administration, a circumstance that has led some on the left to rethink their attitudes to these issues.

Against these major positives, Kennedy also gave us three massive clunkers, where he cast key votes in favor of terrible results: Kelo v. City of New London, Gonzales v. Raich, and—most recently—the travel ban case. The works linked in the previous sentence summarize my objections to these rulings, all of which I regard as grave errors. I also agree with many of the negative assessments of Kennedy's travel ban concurrence offered by some of the symposium participants, and by Cass Sunstein here. Kennedy's last opinion undermines his otherwise strong record of combating unconstitutional religious discrimination by government.

In the Raich case, he voted for the holding that Congress' power to regulate interstate commerce was broad enough to justify a ban on the possession of medical marijuana that had never crossed state lines, or been sold in any market even within a single state. This conclusion is both badly flawed in itself, and at odds with his record in other federalism cases. I am also no fan of Kennedy's recent majority opinion in Murr v. Wisconsin, an important takings case, where he undercut protection for constitutional property rights and created a muddle for lower courts to sort out.

But these serious errors are not enough, in my view, to outweigh the significant good Kennedy achieved in a lot of of other cases across multiple important issue areas. Kennedy was perhaps the only Supreme Court justice who struck important blows for the constitutional rights of both same-sex couples and social conservatives with religious objections to same-sex marriage. When it came to protecting liberty for a wide range of people with differing backgrounds and views, Kennedy had fewer blind spots than almost any of his colleagues.

Because he did not produce much in the way of an overarching judicial philosophy, assessments of Kennedy's record necessarily depend greatly on one's views of particular cases and doctrines where he influenced the outcome. For that reason, I can readily understand how conservative pro-lifers and liberals who believe that campaign finance regulation is essential to democracy, might take a far dimmer view of Kennedy's record than I do. As cases like Kelo and Raich demonstrate, Kennedy was by no means a consistent libertarian, just as he was not a consistent liberal or conservative, originalist or living constitutionalist. But we libertarians nonetheless have much reason to be grateful to him.

NOTE: In my contribution to the Politico symposium, I mistakenly describe Kennedy as the author of a concurring opinion in Citizens United. In reality, he wrote the majority opinion. In my rush to get this piece in on a short deadline, I overlooked this mistake. I apologize for the error, which I have asked Politico to correct.

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  1. Bull Cow is going to REEEEEEEEE about the travel ban in everything that he writes now. Bull Cow is truly unhinged.

    1. Welcome back, Right-Wing Mini-Me.

      Does Prof. Volokh compensate you for your contributions to the Conspiracy (beyond his thanks)?

    2. Haha yeah, he is the unhinged one.

  2. Ilya,
    One does not need an impressive judicial philosophy to leave a stunning legacy. William Brennan’s judicial philosophy was resoundingly unimpressive: can you count to five? (as he told his clerks every year). Brennan believed that results were all that mattered and given enough decisions, the lower courts would generally get the thrust of how cases should be decided.

    While I don’t think that was Kennedy’s philosophy, this has been Kennedy’s court the last 25 years much as the Warren court and a surprising chunk of the Burger court are better described as the Brennan court. Kennedy is the spiritual successor to Brennan as the court’s kingmaker.

    1. “Kennedy is the spiritual successor to Brennan as the court’s kingmaker.”

      Both GOP nomination disasters.

      1. Has there ever been a Dem appointee who was considered swing vote / not reliably left, or is that just a GOP thing?

        1. Byron White.

          1. I would argue you guys have such a hard time finding a pure enough justice for a couple of reasons:
            1) Your standards for purity are much less forgiving. Sum-total, Kennedy has been much better for the right than the left, but guess which side hates him? Ginsberg, Souter, Breyer, have all differed from liberal orthodoxy many times, but the left is not quite so eager to declare them traitors to the cause.
            2) For better or worse, conservative jurisprudence continues to be outside of the mainstream in both position and momentum. Scalia was not just a justice, he was also an innovator leading a movement. That’s going to both mean a smaller starting set and also leave some previous luminaries behind as doctrine and orthodoxy progress. I expect a new turn towards legal activism soon which will uncover some further conservative apostates.
            Liberals, by contrast, are largely still in the same place jurisprudentially as the Warren Court. Lots of supply there, and it’s easy to color within those lines since they are not moving.

            1. “but guess which side hates him?”

              You have not seem lib twitter the last 24hours I guess.

              1. We must follow different lib twitters. Do you have any choice quotes?

                1. “There is something just so perfect about Anthony Kennedy, one of the most morally vain figures in American public life, handing his seat over to Donald J Trump.” Chris Hayes

                  Simple and to the point: “Fuck. You. Justice. Kennedy.” “He is a terrible person.” Ian Milhiser (ThinkProgress: Here is the nasty, unflinching sendoff that Justice Kennedy deserves)

                  There are a bunch of posts insinuating corruption & conspiracy, that his kids worked with Trump or something.

                  There’s the usual racial attacks from the left. The travel ban decision = white nationalism. Etc.

                  1. I follow Hayes. Missed that one, though. That is a bitter one!

                    Fair enough, liberals seem to dislike him as much as conservatives do. But that’s a helluva thing in itself considering how objectively conservative Kennedy was for most of his cases.

                    Seems like you had some fun searching!

                    Not sure where the conspiracy is in ‘Kennedy didn’t mind Trump’ but if the right can believe Scalia was assassinated because of misunderstood pillow positioning…

                    1. Was thinking about this this morning.

                      Conservatives have hated Kennedy steadily for ages. Liberals seem to much more after he just handed Trump a Supreme Court seat. I don’t know that there is a difference inherent in this distinction, but it is not symmetrical.

          2. Appointed by JFK 56 years ago.

            1. Since then a large majority of Supreme Court justices has been appointed by Republican presidents, so there aren’t that many to choose from.

          3. And there’s not much point in going past the Warren court to make this evaluation. FDR’s appointees were all fiercely loyal to him and pro-New Deal, but for a variety of different reasons. They splintered hard on social issues which just wasn’t on the radar yet. So Frankfurter would be considered hard right now a days.

            I don’t necessarily agree that Ginsburg, Souter and Breyer have differed on the liberal orthodoxy many times, at least I’m the way people complain about Kennedy. I can’t think of a case where Ginsburg joined the conservative block to 5-4 the liberal block on an issue. Breyer has on crim pro (and usually while being infuriatingly wrong) and in waffling 6-3 concurrences like Schuette. I can’t immediately think of any on Souter.

          4. If you really have to bring up White, it’s a pretty clear abdication of the argument. The guy wasn’t a fan of creating unwritten rights. He sounds like the opposite of Kennedy

            1. What question do you think White was the answer to, Careless?

        2. Continued.

          Ford wanted a candidate with impeccable credentials in the wake of Nixon. He appointed Stevens. Lesson learned, vet the damn nominee, don’t just rely on the credentials.

          GHWB wanted a candidate without a paper trail after Bork. Lesson learned, if your going to try and ghost a candidate with no paper trail, make sure you know what your getting.

          Because of how many “mistakes” the GOP has made, I think the politicians are highly sensitive to all the ways things could go wrong and are better about vetting. I think because law is a liberal-titled field, it is less common that Democrats will face the same problem.

      2. There’s no question that GOP has been stung by “defectors” in a way that the Dems have not. But part of that is the GOP hasn’t so much repeated the same mistakes, but rather got tripped up by making new mistakes.

        Eisnerhower promised a seat to Warren for his support for the nomination. Lesson learned, Supreme Court seats are more important than primary support.

        Eisenhower wanted a Northeastern Catholic Democrat under 60 years old. The short list was two people. Lesson learned, Supreme Court seats are more important than northeastern democractic presidential votes.

        Nixon had trouble getting his nominee though because Dems were mad that LBJ screwed the pooch on Fortas. So he went with a friend of the chief Justice. Lesson learned, friendship doesn’t mean much when the Chief is a colossal asshole and pain in the ass to work with.

  3. As a side note, the editor who came up with that Politico headline can stick his head where the son doesn’t shine.

  4. A possibly conservative judge replacing a sorta conservative judge? Yawn…don’t see what all the tears being cried are for.yeah he was a swing vote sometimes but given the massive institutional control the left still retains. It was mostly for stuff that was inevitable anyway. Rather than worrying about the relatively nonexistent persecution of insanely powerful groups like gays it’d be more interesting to see if the SC can continue to protect truly unpopular things both sides tend to want to restrict, like free and unfettered internet expression.

    1. the massive institutional control the left still retains

      I hesitate to ask, but sure, I guess, if prof. Somin can talk about immigration, I don’t mind you telling me about the Deep State. Go ahead, I’m listening.

      1. Most societal institutions of note are or have become beholden or at least compelled to pay lipservice to prog ideology. Arts, media, education, government, even sectors traditionally thought of as apolitical or conservative strongholds like the military, corporate america, and even many churches are slowly falling in line. A few elected officials at the top for the time being does not change the fact that the left is very much still in control of the mainstream narrative. This control is powerful enough that it is becoming institutionalized much like a church in the 50s. And its far more widespread than opposing forces and messages. For example a corporation is far more likely to air a commercial extolling the value of affirmative action and hiring people based on having female private parts and other stuff that at the same time supposedly doesn’t matter than to air the alternative message.

        1. Tl;dr Amos Arch, lots of people don’t agree with me so that must be a conspiracy.

          1. The reason the left tends to dominate government bureaucracies and certain institutions like the news media, academia and Hollywood isn’t because of some broad conspiracy, but it’s also not a mere reflection of popular opinion or intelligent thought.

            It has to do with psychologies, propensities and self-selection. Conservatives tend to mind their own business. Leftists stay awake at night worrying that someone, somewhere disagrees with them (thoughtcrime). Conservatives are more likely to be oriented toward family activities, making money in the private sector, providing for family, and pragmatic, material pursuits as opposed to arts and entertainment. Intellectually and academically, conservatives are less likely to have a burning desire and feeling that they need to prove something. That’s because capitalism and freedom won resoundingly in history, socialism and communism lost miserably.

            1. Conservatives tend to mind their own business.

              LOL.

              1. Yes, that one made me chuckle too. Also:

                Intellectually and academically, conservatives are less likely to have a burning desire and feeling that they need to prove something.

              2. You’re right?.. busybody modern conservatives trample on tons of negative liberties including killing babies and the freedom to demand a government certified marriage certificate and uh…did I mention killing babies? Unlike the modern left which only seeks to ban a couple of trifling things such as cars, guns, toy guys, knives, coal, oil, trans fats, saturated fats, meat, paper bags, misgendering, gendered pronouns, spontaneous sex, sex while drunk, cigarettes, fireworks, men’s clubs, employers choosing who they want to hire, employers choosing who they want to serve, employers choosing how they want their employees to dress, mean epithets, suburban households, lawn watering, ivory, hunting, merit based hiring or admission, internet speech, large sodas, happy meal toys, plastic bottles, incandescent light bulbs, horse drawn carriages, goldfish, barbies, thin models, fashion ads with thin models, photoshopping models, male sports team funding, religious liberty, nuclear power, straws, plastic bags??.

          2. Indeed, you didn’t read. No mention of a conspiracy

          3. huh? You brought him up as the left’s answer to a

            1. damn it, how did that post happen

        2. AA, you seem to think these institutions are simply falling in line with the left.

          Actually, in many ways, they are LEADING the move to the left.

          I know your simple mind can only deal with absolutes, but the left is not controlled by a cabal of tree-hugging, gay, commies.

          It’s influenced by people of all backgrounds from all regions with the full gambit of interests.

        3. Exactly. When every major corporation puts out rainbow flags for “Pride” month, you know that the left is firmly in control of every major institution. Only the ordinary people stand between the commies and total control.

          1. So what’s your plan since we are (and have been for over a century) moving in a leftist, progressive direction?

            Sit at home and polish your gun barrel?

  5. The right of gays to marry, of women to terminate a pregnancy, of public universities to use race as a factor in admissions all may be operating on borrowed time.

    Politico, arguing for legal discrimination. Interesting tack.

    1. Euh, where in that sentence is the author arguing for anything?

  6. Harvard Law professor worried about Kennedy’s successor:

    “…unlike when Kennedy was himself nominated, the Senate today appears to lack a meaningful check on assertions of presidential power, especially with the disappearance of the filibuster.”

    The filibuster just spontaneously disappeared? Did they report it missing?

    1. Of course the Senate has a meaningful check on assertions of presidential power. Can you imagine what would happen if Trump tried to nominate a liberal judge? Doubt he’d even get a hearing.

      In fact, the Senate has been the graveyard of things Trump wants to do. It’s not opposing Trump on judicial nominations because the majority LIKES Trump’s judicial nominations.

      1. If Trump tried to nominate a liberal judge, the entire Republican party would instantly fall in line to agree that this was not, in fact, a liberal judge.

        1. I doubt that. The nominee will be carefully scrutinized. They don’t want another Souter or Kennedy.

          And besides, Trump has already said he will nominate from his election list of 25 (now 24, since Gorsuch was nominated off that list). Those have already been vetted and are more or less approved by the base.

          1. That last bit is just moving the goalposts compared to Brett’s original comment.

            As for your first claim, what is it exactly about the Republicans in Congress in the last year and a half that makes you think they wouldn’t instantly embrace, say, Stephen Reinhardt if he was embraced by Trump? That very same day Paul Ryan and the others would queue up on Fox News to explain why all of Reinhardt’s positions reflect his hardcore conservatism, and why they’re calling on Senate Democrats to back him.

            Or is there some semblance of spine among Congressional Republicans – or at least those of them who plan to run for re-election – that I’ve missed?

            1. You’re looking at the Senate approving of things Trump does, and seeing a rubber stamp, where what you ought to see is Trump simply being a conventional Republican who’s not doing anything that the Senate would normally want to block. They’re certainly capable of getting in the way of him on the wall, for instance.

              It’s easy to assume they’d fall all over themselves to approve something Trump isn’t actually doing: Life spares you any chance to be proven wrong!

              1. You mean a conventional Republican who starts trade wars and cozies up to the dictator of North Korea that kind of conventional Republican?

        2. Martinned
          Harriet Miers is holding on line 3 for you.

          1. ‘But them judges though’ is perhaps one of the main way principled conservatives rationalize the toleration of Trump.

            There is a personality cult around Trump that does extend, via voter pressure, to Congress. So it wouldn’t be as pure a revolt as Miers these days, but I still think a majority of GOP Senators would insist on a Federalist guy and not support a pure Trump pick.

          2. That Miers story is a long time ago. I don’t get the impression that that would have played out the same way today. Trump could nominate Jared Kushner for the Court and all the Republicans would stand and applaud.

            1. Whatever helps you sleep at night.

              But the idea that W’s leash was shorter than Drumpf’s strikes me as ridiculous.

              1. Whatever helps you sleep at night…

              2. I agree 100%, Republicans would never confirm a non approved nominee that Trump puts up…after Gorsuch the Senate is firmly in control of the process.

  7. Trump has a second opportunity to make an appointment to the Supreme Court! Time out while those who want to MAGA give thanks, once again, Hillary lost.

  8. Let’s make one thing clear. There’s no legitimate argument that 1) the Establishment Clause is implicated by any immigration action, whether by Congress or the Executive or 2) that the judiciary has any right or power to judge the adequacy of the President’s reasoning behind an immigration bar.

    1. Given that both those arguments were made repeatedly by various Conspirators, I wonder what you’re still doing on this illegitimate blog.

  9. I thought I heard a thunderstorm last evening, but, upon reflection it was probably the nationwide gnashing of liberal’s teeth.

    I expect that the Democrats in Congress will demand that the nomination of a replacement for Justice Kennedy be put off at least until the election of dogcatcher for Ulster County New York, to see if the Democrats have a mandate.

    1. For some conservativism’s main principle is whatever lets them imagine sad liberals.

      1. That’s not the principle. Just a side benefit.

        1. Maybe for you, but not for everyone.

        2. It just depends on which liberals and how they express their “sadness”.
          The SJW who tweeted about how he wished that AK had been the Kennedy who was shot: that’s worth getting out of bed for.

          1. I think it’s slightly distasteful, but totally human to enjoy the ‘defeat your enemies, see them driven before you, hear the lamentations of their women’ aspect of political victories.
            I still remember the purely tribal surge of joy when Obamacare was upheld in a Roberts opinion.

            But I’m seeing ‘own the libs’ becoming the sole driver of many who identify with the right. It’s still pretty rare on the Conspiracy, but the momentum isn’t great.
            I like my opposition to have principles and ideals to engage with!

            1. “‘own the libs’ becoming the sole driver”

              Maybe with random people on twitter. The rest of us just see it as sprinkles on the ice cream.

              Its fun to see all the tearing of garments about Tony being replaced but its the potential policy victories that we want, not crying libs.

              Also, “own the cons” is important to a lot of liberals.

              1. I am responding to a comment evincing that very attitude. You and I have our issues on your substance, but you are very clearly much more substantive than the ones I’m talking about.

                I may be oversensitive because I’m on the other side, but seems to me you’re being willfully blind if you haven’t seen schadenfreude grow to a GOP party plank, and now towards becoming the entire philosophy. A reactionary party is not a good place to be for the party or for the country.

                this is the same as the guy who thinks that RightWingPatriot lunatic must not be for real. Used to be the idea of liberal attitude being a reverse barometer was the ‘random people on twitter’ attitude. Now it’s just about everyone.

                I work hard to be clear-eyed about the silliness of California’s one-party virtue signalapalooza or crying wolf about racism. Don’t give in to the temptation to sanitize your own side.

      2. And as a libertarian, I get to enjoy the sorrow of both liberals and conservatives. One of the side benefits of joining the party.

        1. As a libertarian, I’ve only seen you celebrate sad liberals.

          1. Are you questioning Jerry B’s libertarian credentials?

            He seems to be a card-carrying member of Libertarians For Bigoted, Authoritarian Immigration Laws;

            Libertarians For Military Belligerence And Pre-Emptive Invasions (Of The Wrong Country);

            Libertarians For Government Micromanagement Of Wombs And (Certain) Health Care Clinics;

            Libertarians For Government Gay-Bashing;

            and probably a half-dozen other chapters of “libertarian” groups.

            1. So you’ll be willing to provide cites for me being pro-life, anti-LGBTQA, militarily adventurous, bigoted against (legal) immigrants, etc.

              Not holding my breath or anything.

          2. Haven’t been too many sad conservatives recently.

            1. Conservatives still find lots to lament about.

              All those travel ban lower court cases.
              The Mueller investigation.
              Hillary ain’t been locked up.
              Shootings and the associated concerns about gun policy.

    2. Pelosi has already said that the nomination of a replacement of Justice Kennedy should be put off until “the people” have a chance to have some inupt, I took that as meaning the next presidential election.

      However, unless the Dems win a Senate majority in the mid term elections this November, they don’t have any way to stop the confirmation of the next Trump SCOTUS nominee.

      1. Why not? 60 votes needed for cloture.

        And yes, I’ve been wondering about that too: Why would the Democrats settle for putting the vote off until January? Go big or go home, make the President choose between a system where any candidate needs bipartisan support or a permanently short-staffed Court.

        1. The 60 votes rule was abolished. That is how Gorsuch got in.

  10. Kennedy’s judicial philosophy can be summarized as: Because I feel like it.

    Reading his opinions, you get the impression it is all a matter of what he personally thinks is fair and just. Given who he was, that sometimes came out in a way that pleased the left (gay rights cases, abortion cases) and sometimes pleased the right (free speech, federalism).

    There is a famous legal anecdote (probably apocryphal) that Oliver Wendell Holmes and Learned Hand ate lunch together before a Court session. When they were leaving, Hand called out to Holmes. “Well, sir, goodbye. Do justice!” To which Holmes replied: “That is not my job. My job is to play the game according to the rules.”

    Kennedy is someone who thought his job was to do justice. As he saw it. Not follow the rules.

    1. I think you’re conflating style with substance.

      I don’t care much for Kennedy’s writing, but just because he isn’t doctrinally directive doesn’t mean he’s a judicial realist.
      For most of his admittedly muddy opinions, there’s a concurrence laying out the more formal judicial reasoning that buttoned up the jurisprudence.

    2. Read Kennedy’s concurrence in Trump v Hawaii. That is not the concurrence of a Justice who is ruling on what he thinks is fair and just.

      1. Big deal, one case.

        Tony as tribune to the gays and Casey and many others can be explained by no other thing than “because I feel like it”.

  11. Overturning 3,000+ years of the concept of marriage and millions of dead babies are Tony’s legacy.

    1. Shame on you for pointing out the obvious.

      1. Kennedy’s ideology didn’t agree with yours in at least two ways. This is proof he was a bad judge.

        Way to show your legal objectivity, guys. As well reasoned as when liberals commended Scalia’s legacy.

        1. Thanks for pointing out Kennedy follow his ideology rather than law.

          1. By the time the cases got to his desk, there was no law until he said what the law was.

          2. Haha, are you trying to claim Kennedy’s problem is that he wasn’t an objective legal mind because he disagreed with your sober assessments?

            You’ve managed to prove you’re position is purely ideological, but not yet shown anything about Kennedy.

            Part of being a functioning member of a republic is realizing that reasonable minds can differ and still both be legitimate.

        2. “Way to show your legal objectivity, guys. ”

          The question is his legacy. That is his legacy.

          His bad writing and emotional decision making made him a bad judge but its not his legacy.

          1. Your main evidence for his emotional decision making is that you don’t like some of his decisions.
            All I see is you arguing for is that Kennedy’s main legacy is ticking you off.

            I agree with you that his writing was bad, but you didn’t actually support that either.

            1. “Your main evidence for his emotional decision making is that you don’t like some of his decisions.”

              Its conventional wisdom that Tony was un-predicatable and impulsive in his votes and opinions.

              “All I see is you arguing for is that Kennedy’s main legacy is ticking you off.”

              Gay marriage and Casey are what he will be remembered for in history. Do you dispute that? That is “legacy” whatever my framing of those decisions is

              1. I’m not sure if I agree with conventional wisdom, then. I don’t recall much suspense about gay marriage, or about sodomy.

                I could cite Kennedy for Citizens United or Bush v Gore or all sorts of 5-4 liberal hobby-horses. That’d be just as facile – a legacy though the same idiosyncratic distorted lens, just reversed.

    2. Kennedy was a conservative justice, but he wasn’t a bigot and he wasn’t a stale-thinking authoritarian goober.

      Bob from Ohio can’t tolerate that.

  12. I was going to (somewhat sarcastically) respond to this post by asking “But what does Justice Kennedy’s retirement have to do with Kelo?”, but nevermind – Ilya managed to shoehorn it in there. He has become a parody of himself.

  13. I think that Justice Kennedy’s greatest weakness was that, on issues of greatest importance to him, he tended to give his personal opinion, rather than grounding his decisions in the sorts of objective legal criteria (text and history of authoritative documents, longstanding custom, etc.) traditionally favored as sources of positive law.

    So long as he was the Court’s swing Justice, which was a long time, he could do this, as ultimately it was his vote and not his reasoning that really decided matters. And of course, his subjective opinion was always highly thoughtful, well reasoned and articulated, and worth considering, and hence has lasting persuasive value.

    But upon his leaving the court, this status ended. It is likely that the particular compromises he thought best for the country will be discarded, and the law will move in the direction of more objective sources and, where subjective, more general principles.

    Although the court is likely to move hardly to the right in the immediate future, it’s always possible that a Democratic administration and the retirement of a conservative Justice will move things sharply to the left after that. I think Justice Kennedy’s legacy has to be evaluated based on either possibility. I don’t think the particular approaches he thought subjectively right will prove persuasive to either side, and hence I doubt they will stick.

    1. I have objected to Justice Kennedy’s subjective tendencies in his m judicial approach for some time. But had he lived in a different era, one where thoughtful reflection and moderate compromise was politically favored, he might have made a very good or even a great legislator. And I say this as a matter of objective historical judgment, even if I might have disagreed with him on this policy or that.

      1. From Wikipedia:

        “Kennedy was born and raised in an Irish Catholic family in Sacramento, California. He was the son of Anthony J. Kennedy, an attorney with a reputation for influence in the California legislature, and Gladys (n?e McLeod), who participated in many local civic activities. As a boy, Kennedy came into contact with prominent politicians of the day, such as California Governor and later U.S. Chief Justice Earl Warren. He served as a page in the California State Senate as a young man.”

        So he could probably have gone the politician route if he’d wanted.

        1. To bad, he chose the law, but as a judge he was a good at legislating from the bench.

  14. Kennedy wrote eloquently and powerfully about federalism at times, see Lopez, (Kennedy, J., concurring), but his only opinion with any significance was Bond I (permitting individuals to raise 10th Amend. challenges to federal legislation implementing a treaty).
    Otherwise, Kennedy used a misguided conceptual framework for analyzing federalism issues. His framework is basically this: States are laboratories of policy ideas (“democracy”), once however SCOTUS believes those ideas have been sufficiently debated, it may enshrine the prevailing view into the constitution. Kennedy was unwilling to give the 10th Amendment any real teeth in a majority opinion (except Bond I).

    To properly analyze issues, one should begin with an understanding that the States breathed life into the federal government by ratifying the Constitution. In doing so, they delegated some of their sovereign power to the federal gov’t to be carried out for the collective general welfare of the States. Otherwise, each State reserved its respective universe sovereign powers. That universe does not “shrink” with time, or shifts in contemporary public opinion, or based on outcomes of experimental policies at the state level.

    Although Kennedy appeared to be a strong proponent of federalism, his prose exchanged originalist federalism arguments in lower courts for “lab[]s of states” arguments. He failed or refused to bring substantive contours to the 10A.

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