Bench Memos

Can We Declare Independence from Anthony Kennedy?

A combination of out-of-town travel and technological ineptitude has kept me from blogging here for the past week.  But yesterday I picked up the New York Times in an airport and thought that for once Linda Greenhouse has nailed it.  Or almost.  In a “Supreme Court Memo” in yesterday’s Times, Greenhouse muses on the centrality of Justice Anthony Kennedy on the current Court, focusing especially on its surprise decision at the end of last week to grant certiorari after all in Boumediane v. Bush, a challenge to Congress’s limitation of federal courts’ habeas jurisdiction, respecting Guantanamo detainees, in last year’s Military Commissions Act. 

The Court had declined to take this case on April 2, with Justices Souter, Ginsburg, and Breyer declaring in dissent that they wanted to hear it (which takes four votes), and Justices Stevens and Kennedy publishing a cryptic “statement” essentially saying that if they got their knickers in a twist, they would change their minds and vote to hear the case after all.  Clearly that change of mind has occurred, and Greenhouse is surely right that this is the doing of the “canny tactician” Stevens, who has played Justice Kennedy like a fiddle.  She is probably also right that Stevens was able to persuade Kennedy at last because of the brief of an erstwhile participant in Gitmo’s “combatant status review tribunals.”  As Andy McCarthy pointed out last week, this document is hardly worth the pixels it displays on your computer screen.  And even were it otherwise, the brief would be relevant to exactly nothing in the central issue of the Boumediane case–the question of habeas jurisdiction.

Nonetheless, the anti-war bar and Justice Stevens have combined to leverage Justice Kennedy into accepting a meritless case for the Supreme Court’s docket in the next term.  This event is of a piece with the pattern that emerged in the recently concluded term, a period when Kennedy’s long-running performance of Hamlet reached a kind of climax, with Kennedy the only justice in the majority of every 5-4 decision.  Even in the cases in which the outcome was correct, Kennedy almost invariably rendered the reasoning–whether his own or that of the justice writing for the majority that included him–less coherent than it could and should have been.  The damage to the clarity that the rule of law requires has been fairly serious as a result.

In that article yesterday, Greenhouse relies on Barry Friedman of NYU law school for an explanation of Kennedy’s decision-making.  Friedman calls him (in Greenhouse’s paraphrase) “more of an idealist than a pragmatist.”  This gives idealism a bad name.  It would be more accurate to call Kennedy an impulsive sentimentalist.  His prose style betrays (what passes for) his thinking, vibrating between the poles of maudlin hand-wringing and sanctimonious arrogance, but unusually vacant when it comes to reasoning about legal principles.  (See Jeffrey Rosen on Kennedy, if you can get through the TNR firewalls.)  With Justice O’Connor now gone, and Kennedy unbound by his old tethering to her “pragmatism,” we can now see more clearly than ever that he is just as unprincipled a judge as she was, but an even more self-indulgent one.  It is painfully clear that Anthony Kennedy has neither the wit nor the heart nor the stomach for the work he is called upon to do as a Supreme Court justice.  But until more progress is made in filling vacancies on the Court, we are all at the mercy of the vacancy of Kennedy.

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