Justice Kennedy on Originalism and Bush v. Gore

Interesting tidbits in an interview with Adam Liptak

In advance of the release of his memoir, Life, Law & Liberty, retired Justice Anthony Kennedy sat down with Adam Liptak of the New York Times for an interview.

The book discloses (or perhaps confirms) that Justice Kennedy drafted the Court's opinion in Bush v. Gore. In the Liptak interview, Kennedy acknowledges the problems with opinions produced under time pressure:

In his book, Justice Kennedy disclosed that Chief Justice William H. Rehnquist had assigned him the majority opinion in Bush v. Gore, the 2000 decision that delivered the presidency to President George W. Bush. It was "a close case" and "a close call," he wrote, and he concluded that the majority opinion should be unsigned, which it was.

The court issued its decision, by a 5-to-4 vote on the key issue, the day after the case was argued. Justice Kennedy said that sort of quick action, like the court's recent spate of emergency rulings, was not ideal.

"The court just has to do the best that it can," he said. "But it does need time."

Justice Kennedy also offered these comments on originalism:

In the interview, Justice Kennedy said he had reservations about originalism, which seeks to interpret the Constitution as it was originally understood and has become the intellectual core of the conservative legal movement. Originalism is a starting place, the justice said, but it cannot be the whole story.

"The framers were not so self-assured that they thought they knew every component of liberty," he said. "The meaning of liberty is disclosed over time."

He acknowledged that his view empowered judges. "So what is it that prevents the court from ruling on every interesting and important and essential political and social issue of our times?" he asked, suggesting that there must be some constraints.

Asked to describe those constraints, he said, "You just have to, in case by case, decide whether or not this is absolutely essential to liberty."

Comments

[F.D. Wolf]

Asked to describe those constraints, he said, "You just have to, in case by case, decide whether or not this is absolutely essential to liberty."

What a useful working standard for a judge to apply in interpreting the Constitution: his own personal feelings. We traveled a long way from Benjamin Cardozo's writing that prohibiting the government from re-trying a defendant who had been acquitted of a crime was not "of the very essence of a scheme of ordered liberty" to Anthony Kennedy's writing that gay marriage was.

[Darwinnie]

So Kennedy, who retired near the end of Trump’s term but with enough time for Trump and the Republican senate to confirm his replacement, voted for an authored one of the most partisan opinions in history and delivered the presidency to the Republicans?

[NvEric]

The view from the gallery is that originalism is the construction of what is, and the struggle is in the construction. However, the federal government of today shows a cancerous growth, which means what was created can be destroyed too.

The Necessary and Proper Clause is the evil force of chaos.

[JoeFromtheBronx]

That's what judges do.

They decide on a case-by-case basis, using their judgment. They have various criteria, but ultimately, there is a human side to judging. Tests like "of the very essence of a scheme of ordered liberty" are not exactly free from personal variance.

court issued its decision, by a 5-to-4 vote on the key issue

The Court issued a 5-4 decision. Stevens, Souter, Ginsburg, and Breyer dissented. They did not "concur in part."

JUSTICE STEVENS, with whom JUSTICE GINSBURG and JUSTICE BREYER join, dissenting.

JUSTICE SOUTER, with whom JUSTICE BREYER joins, and with whom JUSTICE STEVENS and JUSTICE GINSBURG join as to all but Part III, dissenting.

JUSTICE GINSBURG, with whom JUSTICE STEVENS joins, and with whom JUSTICE SOUTER and JUSTICE BREYER join as to Part I, dissenting.

JUSTICE BREYER, with whom JUSTICE STEVENS and JUSTICE GINSBURG join except as to Part I-A-l, and with whom JUSTICE SOUTER joins as to Part I, dissenting.

[F.D. Wolf]

If you read Souter's dissent, he clearly does "concur" that there was an Equal Protection violation, but disagreed as to the remedy (this is the "Part III", joined by Breyer, but not Stevens and Ginsberg).

Petitioners have raised an equal protection claim in the charge that unjustifiably disparate standards are applied in different electoral jurisdictions to otherwise identical facts. It is true that the Equal Protection Clause does not forbid the use of a variety of voting mechanisms within a jurisdiction, even though different mechanisms will have different levels of effectiveness in recording voters' intentions; local variety can be justified by concerns about cost, the potential value of innovation, and so on. But evidence in the record here suggests that a different order of disparity obtains under rules for determining a voter's intent that have been applied (and could continue to be applied) to identical types of ballots used in identical brands of machines and exhibiting identical physical characteristics (such as "hanging" or "dimpled" chads). I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters' fundamental rights. The differences appear wholly arbitrary.

531 U.S. 98, 134 (2000) (Souter, J., dissenting) (citations and parenthetical omitted).