Bench Memos

“certainly, [Justice] Kennedy’s general philosophy is conservative”

Maybe I’ve underestimated the power of groupthink among Supreme Court reporters, but I was surprised to find the proposition quoted in the title of this post in the middle of Robert Barnes’s article in Sunday’s Washington Post on Justice Kennedy’s role in the campaign-finance case.  I’ve frequently criticized characterizations of Kennedy as “conservative” (or as a “moderate conservative”), but Barnes’s assertion is particularly striking in two respects. 

First, whereas other labelings have generally obscured the distinction between judicial philosophy and results in a select set of cases, Barnes is asserting that Kennedy’s judicial philosophy is conservative.  One could use many labels to describe the judicial philosophy behind such propositions as “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” and behind freewheeling resort to foreign and international legal materials to redefine the meaning of provisions of our Constitution, but “conservative” is not one of them.

Second is Barnes’s use of “certainly” to suggest that his erroneous proposition is incontestable.

I don’t dispute that Kennedy sometimes deploys his expansive understanding of judicial power towards conservative ends, but his misdeeds of liberal judicial activism (see links above) continue to strike me as far more momentous.  That said, I’m encouraged that Chief Justice Roberts and Justice Kennedy appear to be developing a strong working relationship.