The Volokh Conspiracy
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The Law No Longer Listens To Justice Kennedy
Justice Kennedy's new book reminds me how grateful I am the law no longer listens to him.
Justice Kennedy has been off the Court for about seven years. His new memoir will be released on October 14. Last year it was reported that the memoir would be a two-volume set, but now it seems to have been whittled down to a single 352-page tome. I imagine the publisher took this step to recoup whatever advance they paid some years ago.
I have very mixed feelings about this book. One the one hand, I am truly curious how Justice Kennedy--long the center of the Court--decided cases. On the other hand, I truly don't care. Nothing he says will have any bearing on the direction of constitutional law, and for that I am grateful. Justice Barrett wrote a pithy book called Listening to the Law, which explains how she tries to figure out the objective meaning of the Constitution. Justice Kennedy's book may as well be called The Law Listened To Me, as his personal proclivities determined what code governed us all.
Nina Totenberg interviewed Kennedy. She wrote that the book was "very interesting," unlike many other books by Justices that are "sigh, pretty boring." (I think Totenberg would place Justice Barrett's new book in that category.) What makes the book interesting is that it is not really about "law" in the formal sense. Those niceties were never very important for Justice Kennedy. From what I can tell, the book describes a philosopher king who tried to grapple with very difficult conceptual issues, and came to settlements that he thought were best. That sounds like a fascinating book, if it wasn't so horrifying that one person wielded this power for decades, and apparently still lacks the self-awareness to see why that arrangement is problematic.
So far, the press has focused mostly on Justice Kennedy's treatment of the same-sex marriage case, Obergefell v. Hodges. But I don't think you can separate Obergefell from the two decades of cases that came before: Romer v. Evans, Lawrence v. Texas, and United States v. Windsor. By the time 2015 rolled around, Justice Kennedy had laid all the foundation that was necessary to recognize a right of same-sex marriage in the Constitution.
All along, Justice Scalia warned that this outcome was near-inevitable. In Lawrence, Justice O'Connor insisted the case was not about same-sex marriage. Justice Kennedy offered a similar, weaker warning in Windsor, but no one actually believed him. Almost immediately after Windsor, lower courts began to invalidate marriage laws.
This history is well-known. But to hear the events from the mind of Justice Kennedy, he was simply a free-thinking spirit who saw what the Framers of the Fourteenth Amendment could not: that because children of gay parents were being demeaned, the Constitution must protect a right of same-sex marriage.
Or as he puts in in the book, "In my view the framers of the constitution were not so self assured as to think they knew what the spacious term 'liberty' should mean in all its reach. If they had been certain, they would have written a more detailed explanation" but the Framers were "cautious enough and modest enough" that they "intentionally chose capacious terms that would inspire and protect freedom."
. . .
Kennedy says that perhaps the most persuasive argument for gay marriage came with his realization that many states barred gay couples from adoptions, so that only one could be the legal parent, and the other had no legal right to make decisions for the child, sign school papers for the child, in some cases could not visit the child in the hospital, and the children could not say they had two parents, which was "terribly demeaning for the children of gay parents."
That was the situation faced by "hundreds of thousands of children of gay parents," he observed in our interview. "That was eye-opening for me, and it was very important in influencing me for the result."
Look how he describes the process: he saw something that made him sad, and that influenced the "result." The reasoning was simply not important. The outcome mattered. Why couldn't he have waited a case that challenged the bar on gay parents from adopting? Texas, for example, allowed gay parents to adopt. (During oral argument in Lawrence v. Texas, the Harris County District Attorney infamously did not know this fact.) That sort of ruling would have been a more narrowly tailored way to remedy this problem, but Justice Kennedy did not want to wait longer. There had been enough discussion, and it was time to decide.
USA Today offers further excerpts of the book. Kennedy explains why he wrote Obergefell the way he did: so it would pass the "refrigerator test."
One of his top goals in Obergefell v. Hodges, the gay-marriage decision, was "not to dilute the meaning and significance of marriage by adopting the tone of: 'Oh, we might as well allow same-sex marriage, since it does not hurt conventional marriages,'" he wrote.
Instead, Kennedy wanted to elevate both heterosexual and same-sex marriages to reaffirm "the respect and love which all of us seek."
He also wanted the opinion to be short and clear enough that Americans could easily understand the reasoning.
Kennedy felt that he achieved that after someone told him the opinion had passed the "refrigerator test" because people were taping key passages to their refrigerator doors.
And the letter writers − both gay and straight − who've told Kennedy they've read from the decision at their weddings reassured him "that our opinion gave dignity to their decision to spend their lives together."
Kennedy celebrates that his opinion was used in this fashion. What a bizarre conception of the judicial role With good reason, Justice Scalia's dissent compared Obergefell to the "mystical aphorisms of a fortune cookie." After Scalia's death, people left fortune cookies, paper bags, and apple sauce outside the Supreme Court.
Perhaps the biggest insight Kennedy offered is how the Scalia dissent caused a significant rupture on the Court. Totenberg writes:
It was the gay marriage cases, however, that for almost a year led to a rupture with his colleague, Justice Antonin Scalia. The break came over Scalia's dissenting opinion in the same-sex marriage case in which he wrote that if ever he were to join an opinion like Kennedy's "I would hide my head in a bag." According to Kennedy, the other conservatives thought the dissent "offensive" and "intemperate" and tried to get Scalia to modify it. But they failed, prompting Chief Justice John Roberts to write the lead dissent.
This last bit is fascinating. In Obergefell, Roberts's dissent was joined by Scalia and Thomas. Scalia's dissent was only joined by Thomas. Thomas's dissent was joined only by Scalia. Alito's dissent was joined by Scalia and Thomas. No dissent had more than three votes. Had Roberts and Alito joined the Scalia dissent, then Scalia would have had four votes, and would have been considered the "principal" dissent. But Roberts and Alito did not. Is Kennedy suggesting that Roberts and Alito dropped off Scalia's dissent due to Nino's sharp prose? This is a fascinating look at the behind-the-scene machinations.
Kennedy continues to explain that Scalia became alienated from the Court. And remember, this was only three years after the rupture caused by NFIB v. Sebelius, where Scalia was furious at Roberts.
Kennedy says that while he was able to "shrug off" the Scalia dissent, his children and their spouses "were devastated" by its tone." And by the beginning of the next term Scalia, known to all as Nino, "rarely came to lunch" with his colleagues and no longer stopped by Kennedy's chambers to chat.
Months went by and then one day in February of 2016 Scalia "came down the long corridor of the court to my chambers to talk." Once there, "he turned to the subject on both our minds: our own relationship. Nino said he had come to regret deeply his Obergefell dissent" and he apologized for being intemperate. "The visit became a pleasure, even a landmark for us," writes Kennedy. "Neither of us was big on hugging but we hugged, both of us smiling."
It is fascinating that Kennedy would relay that Scalia regretted the tone of his dissent. In the past, I have used sharp language and later regretted it. Supreme Court Justices are no different.
The excerpt from USA Today explains exactly what bothered Kenned the most:
What had bothered Kennedy the most was Scalia's assertion that the Supreme Court justices – whom he said were deciding the gay marriage issue in place of the voters − were not representative of the nation in their backgrounds and didn't even include a genuine Westerner because "California does not count."
Kennedy took great pride in his California roots and wrote that his worldview was defined by the West.
"He apologized for being intemperate," Kennedy wrote. "We both smiled, and the matter was resolved."
California does not count. I don't think you can compare Colorado or Utah or Wyoming to Sacramento. Likewise, there is a very good argument that Texas is not part of the "south." (I got into a serious argument with a Georgian on this point.)
Finally, I always wondered why Justice Kennedy never bothered responding to Justice Scalia's dissents. Kennedy explains why:
Scalia's attack [in Obergefell] "weakened his opinion, enabling me to shrug it off," Kennedy wrote in "Life, Law and Liberty," being published Oct. 14 by Simon & Schuster. But Kennedy's family was "devastated by the tone of the dissent."
Kennedy thought that because Scalia's prose was so harsh, the opinion was weakened, it could be shrugged off.
The reconciliation between Kennedy and Scalia came in February 2016, about eight months after Obergefell, but shortly before Scalia would die:
Scalia was leaving shortly for a hunting trip in Texas, but the two men pledged that when he returned, they and their wives would get together again. Kennedy recalls that he told Scalia not to overschedule himself, and Scalia promised that this would be his last long trip.
Those parting words were the last they ever spoke to each other. About a week later, Scalia died in his sleep while on that hunting trip. "If friendships are slipping away, we must renew them soon, lest time does not permit us to celebrate them for long," Kennedy writes.
This passage brought me back to a very sad time. I remember very clearly the day that Justice Scalia died. I felt this overwhelming sadness for the loss of someone I had only met a handful of times. His death created so much uncertainty for the future of the Court, the presidential election, and indeed the Constitution. But what made me so sad was the recognition that there would be no more Scalia opinions. No one can write like him. As the editor of the casebook, I would never again have the joy of editing a new Scalia decision for new law students to read.
Justice Kennedy had made the point about Scalia's travels before. Scalia's hunting trip to Texas came shortly after a trip to Singapore and Hong Kong. I relayed that journey in my 2016 book, Unraveled:
During that recess, the Court's greatest globetrotter was the Justice least concerned about international law.3 Fittingly, Justice Scalia was spreading American law abroad. At the Ninth Circuit Judicial Conference in July 2016, Justice Kennedy recalled that Scalia told him, "Tony, this is my last big trip." On January 24, Scalia traveled to Singapore with his friend and coauthor Bryan A. Garner. A law professor at Southern Methodist University, Garner is the preeminent American lexicographer. On January 28, Scalia gave the Lee Kuan Yew Distinguished Lecture at the University of Singapore on judicial interpretation of legal texts.4 On February 1, Justice Scalia and Justice Kemal Bokhary of Hong Kong's Court of Final Appeal hosted a dialogue on judges and democracy.5 The next day, Scalia and Garner discussed their second coauthored book, Reading Law, at the Chinese University of Hong Kong.6
Garner reminisced that during their busy trip, his colleague was "unbelievably energetic and always on the go," even after working fourteen-hour days.7 On February 3, their final day in Hong Kong, Garner and his wife Karolyne had their palms read by a soothsayer at a Taoist temple. "Nino, you ought to get your palm read," Garner said. Scalia replied, "No. I don't want to know when I'll die." Garner nudged him, "Come on!" Scalia dissented, "No."
After his worldwide tour, Scalia traveled from the Far East to West Texas. On the afternoon of Friday, February 12, Scalia checked into the "El Presidente" suite at the Cibolo Creek Ranch, a 30,000-acre resort outside of Marfa.8 That evening, Scalia attended a private dinner with forty other guests.9 Toward the end of the meal, he retired to bed. The next morning, when he did not arrive for breakfast, an employee of the ranch checked in his room.
Scalia was found dead in his bed. A priest was called to administer last rites. Scalia was seventy-nine years old. He was survived by his wife Maureen, nine children, and thirty-six grandchildren. The justice was seven months short of his third decade on the Supreme Court.
At the time, I though it was remarkable that Scalia was still traveling around the globe with such a heavy schedule. (I had visited Singapore in December 2016, and had emailed Garner about my trip.) I've since heard that there was a lot of dissatisfaction with Scalia's travels as his health was not in the best shape. This would turn out to be Scalia's last long trip.
Kennedy offered this warm exchange with Maureen Scalia after Nino's passing:
When Scalia's wife called to tell Kennedy her husband had died, she told him how much their reconciliation had meant to Scalia.
"We sometimes agreed and sometimes disagreed," Kennedy wrote, "but I respected him and miss him very much."
Justice Kennedy seems to have been a generous colleague. But as a jurist, well, I take satisfaction with everyone of his decisions that is obviated. Totenberg relays:
When he retired from the court in 2018, Kennedy told a small group of journalists that he was confident that the court's major decisions would remain intact. But when I asked him if he still thinks that is true, he demurred.
In the same sense that I had sadness that I can no longer teach students new Scalia opinions, I am joyful that I no longer have to teach students old Kennedy opinions.
