Bench Memos

Rosen’s “The Arrogance of Justice Anthony Kennedy”

Jeffrey Rosen critiques Justice Anthony Kennedy in The New Republic (registration req’d).  His profile does not pull any punches. Here are a few choice snippets:

Anthony Kennedy seems most at home when he is lecturing others about morality. And now all of us have little choice but to pay attention. With the retirement of Sandra Day O’Connor, Kennedy is relishing his role as the new swing justice on an evenly divided court. As Kennedy goes, so goes America: As he votes to uphold partial-birth abortion laws or to strike down President Bush’s military tribunals, lo shall they be upheld or struck down. Fawning lawyers must write briefs to Kennedy alone, and breathless commentators try to predict which laws he will bless or reprove. . . . 

*   *   *  

when it comes time to hand down decisions, Kennedy shows little ambivalence about the centrality of his role in our national drama. His opinions are full of Manichean platitudes about liberty and equality that acknowledge no uncertainty. “Liberty finds no refuge in a jurisprudence of doubt,” he wrote in his decision in Planned Parenthood v. Casey, the 1992 opinion upholding the core of Roe v. Wade. “Preferment by race, when resorted to by the State, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality,” he intoned in a 2003 dissent from the Court’s decision to uphold affirmative action in law schools. Kennedy does indeed agonize before reaching his decisions, and he has dramatically switched his vote in high-profile cases. Yet he seems to agonize not because he is genuinely ambivalent or humble but because he thinks that agonizing is something a great judge should do, to show that he takes seriously the awesome magnitude of his task. . . .

*   *   *  

Kennedy has often cast himself in Warren’s image, treating the Court as an engine for moral change that could save politics from its most partisan tendencies. Like Warren, Kennedy frequently decides cases based on his instincts about fairness and justice, rather than rigorous legal analysis.

The difference is that Warren was a masterful politician who enjoyed interacting with people. Kennedy, by contrast, prefers romantic generalizations about “real people” to actually listening to them. . . .

 *   *  *  

From the beginning, Kennedy’s performance on the Court has been defined not by indecision but by self-dramatizing utopianism. He believes it is the role of the Court in general and himself in particular to align the messy reality of American life with an inspiring and highly abstracted set of ideals. He thinks that great judges, like great literary figures, have both the power and the duty to “impose order on a disordered reality,” . . .  By forcing legislators to respect a series of moralistic abstractions about liberty, equality, and dignity, judges, he believes, can create a national consensus about American values that will usher in what he calls “the golden age of peace.” This lofty vision has made Kennedy the Court’s most activist justice–that is, the justice who votes to strike down more state and federal laws combined than any of his colleagues. . . .

*   *   *

Anthony Kennedy doesn’t much care whether his abstractions are true; the important thing for him is that he wants them to be true. As a lawyer in private practice, the future Justice Louis Brandeis was famous for having inaugurated the “Brandeis Brief,” a long compendium of statistics measuring the empirical effects of various pieces of social legislation on real American workers. Kennedy, by contrast, has inspired the proliferation of the anti-Brandeis Brief, which might be called the Kennedy Brief. In a Kennedy Brief, lawyers on both sides fall over themselves to court Kennedy’s favor by repeatedly citing the opinions of Justice Kennedy. These briefs are now so common that they’ve become an inside joke within the Supreme Court bar. . . .

The article is already causing a stir in the legal blogosphere, as much for its tone as its content.  See, for instance, here and here .

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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