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Say Goodbye to the Kennedy Court

Justice Kennedy's retirement will have a significant impact on the Roberts Court beyond its ideological makeup.

Justice Kennedy's departure from the Supreme Court will mark the end of the Early Roberts Court, or what many of us would often refer to as the "Kennedy Court." Justice Kennedy was in the Court's majority more often than any other justice. His distinct jurisprudence, combined with his position as the Court's median justice, meant that his particular (and often idiosyncratic) views had a disproportionate impact on the Court's jurisprudence. What comes next will be interesting, and likely somewhat surprising.

Justice Kennedy is often described as a "moderate" justice, but this characterization does not quite capture what was distinct about Justice Kennedy's approach to the law. On most issues, most of the time, Justice Kennedy was a moderate conservative. He voted on the "conservative" side of most cases. When the Court split 5-4 along ideological lines, for instance, Justice Kennedy would side with the conservatives approximately two-thirds of the time. (64% since OT 2005.) Justice Kennedy had a narrow view of the protections afforded criminal defendants under the Bill of Rights, embraced federalism, generally (though not always) favored textualist approaches to statutory interpretation, supported a Chicago-School approach to antitrust, believed in gun rights, and was skeptical of class actions and entrepreneurial plaintiffs' litigation.

Although conservative, Justice Kennedy also usually preferred minimalist decisions of the sort favored by the Chief Justice over broad rulings setting forth categorical rules. When the Court split along Formalist-Pragmatist lines -- typically in criminal justice cases -- Justice Kennedy would also tend to side with the Pragmatists, eschewing bright-line rules in favor of more flexible assessments based on the specific exigencies of a given situation. In sum, the mode of Justice Kennedy's decision-making was a moderate conservative pragmatism.

While Justice Kennedy was usually a moderate conservative, there were areas of the law in which Justice Kennedy was not particularly moderate and others in which he was not particularly conservative. Particularly in areas touching on the freedom of speech and personal liberty, Justice Kennedy would swing for the fences. Justice Kennedy was easily the most speech-protective Justice on what was a quite speech-protective Court. Whether the speech at issue concerned political campaigns or product pricing, "offensive" messages or dishonest claims about military service, Justice Kennedy believed in uncompromising First Amendment protection. By some accounts it was Justice Kennedy who pushed the Court (and a reluctant Chief Justice) to invalidate the McCain-Feingold campaign finance law, and this would be entirely consistent with what we saw in his First Amendment opinions.

Speech was not the only freedom that mattered to Justice Kennedy. He had a deep concern for Due Process, as shown in his embrace of habeas rights for alleged enemy combatants, his concerns about the application of capital punishment to some classes of criminal defendants, and his embrace of constitutional limits on punitive damages. He also, perhaps most famously, believed that due regard for individual liberty barred the government from adopting laws prohibiting or disregarding same-sex relationships, as in Lawrence, Romer, Windsor, and Obergefell. In these areas, there was nothing modest, moderate, or minimalist about Justice Kennedy's views or the doctrinal rules he would embrace.

Given the makeup of the Roberts Court, as went Justice Kennedy, so went the Court. Where Kennedy was a moderate conservative favoring a minimalist approach, the Roberts court would tend to adopt a moderate conservative opinion. Where Justice Kennedy favored a more muscular approach, on the other hand, there were almost always at least four votes to go along. (NFIB v. Sebelius being a notable exception.) If Justice Kennedy wanted to recognize same-sex marriage or preclude the use of the death penalty for those convicted of non-lethal crimes, the liberals would agree. If Justice Kennedy wanted to protect campaign-related or commercial speech, the conservatives were there. so the Roberts Court was generally as conservative and as moderate as Justice Kennedy wanted to be.

Without Justice Kennedy on the Court, the particular (and sometimes peculiar) contours of the Roberts Court's jurisprudence are likely to change. In some areas, this is likely to move the Court in more conservative direction, but there are many areas in which the differences between Justice Kennedy and his replacement may be hard to predict, including (but not limited too) the First Amendment, the Dormant Commerce Clause, punitive damages, preemption, and criminal procedure. How the next justice feels about some of these questions could be quite significant (consider, for example, dormant commerce challenges to state climate rules or First Amendment challenges to mandatory disclosure requirements). These sorts of questions do not always divide jurists along right-left lines, so it's hard to predict how they will fall out.

One change we can predict is that Chief Justice Roberts will more often than not, be the new median justice, largely because of his minimalist approach to judging. Chief Justice Roberts, more than any other justice on the Court, believes in narrow rulings that attract broad majorities, answering no more than necessary to resolve a given case. The Chief Justice has been somewhat successful in pushing this approach over the past decade, but usually only when Justice Kennedy would go along (and the two of them agreed). Without Justice Kennedy, the Chief Justice may have a greater ability to steer the Court in a minimalist direction, even where his conservative colleagues disagree. In this regard, the Chief's decision for the Court in Bond v. United States, in which he joined with the liberals to adopt a narrower (yet still "conservative") outcome may be a sign of things to come.

One other change we can expect will be in the mix of cases the Court accepts for certiorari. In recent years, it has appeared that many justices based cert decisions (at least in part) on what they expected from Justice Kennedy. That will no longer be part of the calculus. Also, as scholars such as Thomas Merrill have noted, as the Court's personnel changes, it becomes more difficult (at least at first) for justices to predict case outcomes and thus it becomes more difficult to engage in strategic voting in the cert process. So don't be surprised if we start seeing a different mix of issues start to come before the Court.

To conclude this already overlong post, we can say with some certainty that the Kennedy Court is gone. It is more difficult to predict what the new Roberts Court will look like. To paraphrase the Swam, that's why they hear the cases.

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  • loveconstitution1789||

    Good riddance Kennedy.

    Guy had a real problem following the language and limitations of the Constitution.

  • regexp||

    Translation: Kennedy didn't rule how I wanted him to rule.

  • Sarcastr0||

    Just like you have some trouble reading the text of blog posts?

    I may think Bob is wrong, and a bit tasteless wishing for Justices 'to go' but his comment is way more than signaling your tribal affiliation by beating on the apostate of the moment. He even quotes part of the OP!

  • Scarecrow Repair & Chippering||

    I suppose like you have writing the blog comments!

  • Sarcastr0||

    ? Most of my comments are pretty responsive to the comments they reply to. Some argue I strawman, but they tend to have some trouble supporting that when asked to.

  • Scarecrow Repair & Chippering||

    Your reference to Bob made me think you replied to the wrong comment.

  • Sarcastr0||

    Gotcha. Understandable.

  • a tandem||

    but his comment is way more than signaling your tribal affiliation

    Says our most rigid and tribal comment board participant!

  • Rev. Arthur L. Kirkland||

    Kennedy was a right-winger who was not a bigot and not anti-abortion.

    Faux libertarians fault him for the latter half of that sentence.

  • a tandem||

    Do you post anything besides nonsense. Most bigots are left wingers.

  • Chereth Cutestory maritime aty||

    He does not.

  • Moo Cow||

    R u some kind of elderly shut-in???

  • Bob from Ohio||

    "One change we can predict is that Chief Justice Roberts will more often than not, be the new median justice"

    My disappointment with Roberts is already well established so I am unfortunately prepared for his continuing shift to the left.

    For real change we need Ginsburg or Breyer to go.

  • Martinned||

    That's not what "new median justice" means.

  • Brett Bellmore||

    Well, it's not what it means, but it's not contradictory with that meaning. Roberts has shifted left since he took office, and while this might make him the median justice, it won't necessarily arrest that shift.

  • perlchpr||

    I have to wonder how many people on the left would have spontaneous aneurysms if RBG bit it today.

  • Brett Bellmore||

    I know what you mean. I don't wish the lady ill, but it sure would be fun surfing the web tomorrow if she were to retire tonight. If the prospect of a squishy conservative being replaced with a reliable one has them screaming that the Constitution is dead, and advocating rioting in the streets, an actual game changing replacement would probably cause our cities to burn.

  • Joe Emenaker||

    "it sure would be fun surfing the web tomorrow if she were to retire tonight"
    What still confounds me about Libertarians and Republicans is that they express such joy in seeing their ideological adversaries dejected or outright grief-stricken. No liberal I know is like that.

  • vek||

    Are you joking??? Tons of leftists love to rub it in about how they've won the cultural war, about abortion etc. I don't even care about abortion personally, but many people care deeply, and I have seen leftists show zero regard a million times. I live in a lefty area and have seen joy on their faces all the time when they perceive they have dealt a blow to right leaning people.

  • Sarcastr0||

    Once again, the important thing is owning the libs.

  • Rev. Arthur L. Kirkland||

    The important thing is claiming a majority in Congress and the presidency.

    In some contexts, that may be the only thing.

    Well, that and being on the right side of demographic changes in the electorate.

  • Careless||

    I have a friend posting about how her four year old is terrified today. Because a Supreme Court Justice died. Now why do you think that is? Because this crazy asshole has been scaring the shit out of a young child for no reason. These people have gone insane

  • Freddy the Jerk||

    No way that's true. Screenshots or it didn't happen.

  • Sarcastr0||

    Yeah, I'm pretty nonjudgmental but it's pretty hard to avoid that that's not good parenting. But I'm not sure you should generalize based on this one example.

    Perhaps I'm reading too much into 'these people' but partisans taking things too far isn't exclusive to the left. It's worse these days on both sides now than it has been in a long time (though I hear the late 60's give this era a run for it's money)
    While it's tempting for me to say the left is just overreacting to the crazies on the right, I'm pretty sure that's just my partisanship talking.
    Instead, I think it's a combination of the media discovering the profit in tribalism, the Internet indulging our worst impulses of tribal signaling, and money in state politics.

  • Sarcastr0||

    So maybe I'm doing the confirmation bias thing in these latecomer commenters whose main purpose seems to be imagining liberal misery at the latest event in reality or their imaginations.

    I will at least point it out when I see it.

  • a tandem||

    imagining liberal misery

    You obviously don't read many leading liberal commentators on twitter. They are acting and writing as though this is an apocalypse. If you did not have such a partisan cognitive bias you would see the fact of it

  • Absaroka||

    "It's worse these days on both sides now than it has been in a long time (though I hear the late 60's give this era a run for it's money)"

    I must not have done enough drugs, because I remember the 60's, and the level of vitriol today seems quite a bit worse to me. There were certainly very pissed off people then, but my sense is that the intense partisan dislike wasn't as widespread. The parties weren't monocultures as much as they are today, so most D's and R's had at least some common ground in addition to their differences.

    "Instead, I think it's a combination of the media discovering the profit in tribalism, the Internet indulging our worst impulses of tribal signaling,..."

    Back then everyone shared a reality because everyone watched Walter Cronkite; you couldn't really bubble yourself like you can today. Moreover, a retiring SC justice would get 30 seconds of airtime, so people would think about other things instead of starting a multihour immersion in their hate-the-other bubble.

    Many towns had two flavors of newspapers, but even there the news people IMHO didn't run as partisan as they do today; journalistic integrity was still more of a thing.

  • EscherEnigma||

    Let's see... firehoses, attack dogs, "Ax handle Sunday", sending in the national guard to get kids to school, Kent State...

    I wasn't around in the 60s, but you lot sure made the history books with your political violence.

    So sure, maybe today people say worse things. But you were far more likely to get beat back then.

  • Gaear Grimsrud||

    I kinda remember the sixties (I was too young to score drugs) and I think Absaroka's observations are pretty accurate. The parties had much more in common then, we had 3 networks creating the conventional wisdom, journalistic integrity was a thing, and a supreme court justice retiring would not create widespread panic. The political violence, Kent State, Weathermen, firehoses, attack dogs and whatever remnants of KKK racist violence remained, did not have large enough constituencies to prevail. Young people were rebelling against conscription into a pointless war created by the Greatest Generation who were still celebrating their defeat of the Nazis and the Japs. The south was rebelling against what they perceived to be an attack on federalism. In the end we got an end to the war and the draft, forced integration, and George Wallace elected governor with a majority of the black vote. Were you more likely to get beat back then? Maybe, I dunno. I grew up listening to my parents talk about the Great Depression and WW2. Hard as I tried, I really could never give a shit. Guess you had to be there.

  • Red Rocks White Privilege||

    I have a friend posting about how her four year old is terrified today. Because a Supreme Court Justice died.

    Smells like shitthatneverhappened.txt.

  • Chereth Cutestory maritime aty||

    What kind of environment is it where a four year old even knows what a Supreme Court Justice is?

  • Rev. Arthur L. Kirkland||

    The real change won't involve a departure of a Ginsburg or a Breyer.

    The real change will involve the arrival of the tenth and eleventh justices.

  • Rev. Arthur L. Kirkland||

    I am content and optimistic. I like how America has improved and where America is headed.

  • a tandem||

    Probably no better way to depress get out the vote for Dems and encourage get out the vote for GOP than promoting court packing schemes.

    Please keep it up!

    You don't seem to realize huge majorities of the public support presidential nominees to scotus no matter what their position. That is consistent in Pew and Gallup.
    - A super majority of the public ay a nominee should not be disqualified if they support to upholding Roe v Wade; and ALSO
    - A super majority of the public say a nominee should not be disqualified if they support overturning Roe v Wade.

    The vast majority of the public thinks there should be no issues or poltical disqualification only a character one;

    -- and a vast a majority are also uncomfortable with a Democrat president replacing a prior GOP appointment; and a GOP president preplacing a retiring Dem appointment. this is why there was no public outcry when the senate blocked Obama's attempt to replace Scalia with a hard line left appointment.

    In fact blocking Garland turned out to be a political advantage for th GOP.

    so hold your panic and perpetual outrage and aggrievement politics for when President Trump gets to replace Ginsburg and Breyer

  • ||

    If the Democrats try to pull that, I'm hoping that patriot braver than I am exercises the 2nd Amendment remedy.

  • Moo Cow||

    Sad

  • kcuch||

    they already did... 'a stitch in time, saves nine'

  • Red Rocks White Privilege||

    It says something about the shitlib mindset that they demand the deck be stacked in their favor when they don't get their way.

  • MoreFreedom||

    It's been reported that Trump is considering nominating Mike Lee to replace Kennedy. If Trump nominates Lee, and with Trump's nomination of Gorsuch (who votes with Clarence Thomas - best justice on the court from a libertarian perspective), Trump would be the most libertarian president in the past 80 years at least.

    There's still a bunch of writers at Reason attacking Trump for things he says, as opposed to things he does. I hope to see something positive, and some of these never Trumpers (and I voted for Johnson though I felt Trump was far better than Clinton, but he's turned out far better than I hoped) changing their mind about Trump.

    I really didn't like Trump, because of his mixed messages and unwillingness to attack government spending and the debt. It appears that Trump, like his predecessors, lied (those mixed messages) to get elected. And he's limited his battles with Congress who want the status quo, who have the power of the purse and want to get rid of him. Seems to me Trump hid his libertarian leanings to get elected.

  • David Nieporent||

    Seems to me Trump hid his libertarian leanings to get elected.

    Which part of his libertarian leanings do you most approve of? His increased taxes? His increased spending? His anti-immigration stance? His drug warrior appointments?

  • vek||

    Back in reality he CUT taxes. He did increase spending unfortunately. He is mostly anti illegal immigration, and low skilled immigration, which are eminently sensible positions. And he has also said he's okay with letting the states do their thing on weed.

    Sooo basically 3/4 of what you said is either bunk or exaggerated at least. Live in reality, not your bubble. It''s a lot nicer out here as screwed up as it is.

  • MonitorsMost||

    Johnathan,
    Very well written.

  • steeltown lad||

    Kennedy provided the fifth vote in the Kelo case. In discussing his legacy as a "moderate conservative" you might want to consider whether that fits with the characterization. Through a rare coincidence I had the opportunity to have lunch with (then-former) Justice O'Connor and asked her about it...she was still pretty frosted about the decision to put it mildly.

  • EscherEnigma||

    The real difference in the next court will be that justices didn't used to have to pass such strict litmus tests to get party approval. New appointees today are far more partisan then they used to be. As such, I expect that the court will become easier to predict, not harder.

    That said, I think this (and the fight over Scalia's seat) goes to show that the current system is flawed. We should reform the way justices are appointed such that new justices are a reliable and regular thing, and not hinged on random events. Something like "new justice every two years" (so two per presidential term) would end up inflating the court a bit, but keep any single presidential election from being uniquely important to the SCOTUS as the age/politics of the current cohort wouldn't impact future appointments.

  • ||

    If that's the case, it's entirely due to the left accelerating its anti-Constitutional decisions.

  • a tandem||

    You are inverting the history the litmus test used to be worse. new appointments are less partisan. Did yo miss the refusal to approve Robert Bork? Not one personal or professional failing or flaw. Wdiely considered by both sides as one of the leading legal minds of the age.

    He was blocked on purely partisan litmus test lines.

    And how did the fight over Scalia's seat flawed? Obama got to nominate and was approved on two very left and very young nominees. Their actuary tables show they will likely serve twice long long as most 20th century judges. Effectively that was like four nominations.

    Surveys by Gallup and pew show the public is most worried about GOP appointed judges replaced with Dem ones and visa versa. The public had voted a Republican Senate in good part due to obama overreach on many topics.
    In this case he was replacing a libertarian leaning republican with what we knew would be a left wing Democrat.

    The court packing scheme you are suggesting would create more not less partisanship and division.

  • Sarcastr0||

    Robert Bork? Not one personal or professional failing or flaw

    Haha, wow.

  • Chereth Cutestory maritime aty||

    If he was younger, aybe take a second look at Douglas Ginsberg, AKS 'Captain Toke'.

  • Ridgeway||

    Loved that skit.

    You mincing little....Soy loco por los cornballs!

  • Careless||

    I didn't explain why I called Kennedy something like "slightly to the left" last week in a thread I can't remember the name of, so I'll do it here: While he's definitely on the Right of the 9, SCOTUS Justices are shifted to the left of the American average, like highly educated Americans in general are.

  • Sarcastr0||

    I'd argue that your metric doesn't properly apply because the actual specific legal decisions Justices make aren't the sort of thing the average American has any quantifiable position on.

    We may try and reduce it down, but Justices aren't actually answering contextless questions like 'Abortion yay/nay.'

    e.g. Should agencies get deference is an elite question with populist implications.

  • a tandem||

    Nonsense

  • MoreFreedom||

    "One change we can predict is that Chief Justice Roberts will more often than not, be the new median justice"

    Seems to me Roberts leans towards more government, considering he ruled that the feds can force us to buy government approved health insurance for the benefit of health insurers and health providers. Obama claimed the Obamacare mandates were not a tax, yet Roberts said it was so the court could rule Obamacare is constitutional. It's hard to see how that's the case, unless you believe in powerful socialist government, which our libertarian leaning founders did not.

  • The gouch||

    Now to get Ginsberg out 85,, and the other 79,,, The only thing they stay for is the free dementia drugs..

  • Chereth Cutestory maritime aty||

    So they need pharmaceutical intervention to arrive at their skewed decisions? Makes sense.

  • tbc||

    Kennedy was a horrible justice whose had no real judicial philosophy and was high on his own importance. You might like gay marriage, but there is absolutely nothing in the constitution about it, just as there is nothing about sodomy. He legislated from the bench like any liberal an his occasional nods to the Constitution notwithstanding, he wasn't loyal to it at all. Good riddance.

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