Bench Memos

Springtime for Justice Kennedy

On a day when Charles Lane of the Washington Post reports that Justice Anthony Kennedy has recently complained that editorial writers should “read the [Court’s] opinions before they write their editorials,” Adam Cohen of the New York Times editorial staff sends Justice Kennedy a lovely springtime mash note.

According to Cohen, there are no “liberals” on the Supreme Court; instead Stevens, Souter, Ginsburg, and Breyer are identified as the “four moderate justices.” Recalling the circumstances of Kennedy’s appointment to the Court, Cohen writes of the “far-right credentials” of Robert Bork, as contrasted with Kennedy’s “solid conservative” record. Kennedy is said to have “generally allied himself with the conservative bloc,” but Cohen provides no statistical breakdown to bear this out, instead providing roughly equal numbers of examples of his “conservative” votes on the one hand and votes where he has “broken with conservative dogma” on the other hand (still no liberals on this Court!). It’s hard to see a “general” trend from such scanty evidence.

Keep on breakin’ with that dogma, Tony (always a bad thing, dogma, don’t you know—too much like, say, the original understanding of the Constitution)! Cohen has high hopes for Justice Kennedy: “there are signs that his views are evolving,” and he “cares what other people think,” like for instance editorial writers at the New York Times.

And brace yourself: it may be that Justice Kennedy “will be changed by his vastly expanded influence,” as he comes out from under the shadow of the swingingest justice of them all, Sandra Day O’Connor. Wouldn’t it be great if, just as the Rehnquist Court was really the O’Connor Court, the Roberts Court came to be really the Kennedy Court?

It’s spring, and a young editorial writer’s fancy turns to thoughts of a pipeline to dictatorial power. But if you turn increasingly to the left, Justice Kennedy, rest easy, for Adam Cohen promises never to call you a liberal.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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