Situating Justice Kennedy

At his recent Robert H. Jackson Lecture, eminent constitutional law professor Laurence Tribe said:

With Obergefell, Kennedy cemented his legacy as one of the Court’s great Justices, a jurist with a keen sense of the human condition whose favored doctrinal concept – that of “equal dignity” – is now enshrined as one of the crucial components of constitutional law.

Setting to the side whether Justice Kennedy is, or should be, on the list of the Court’s great justices [1], it might be more interesting to place Justice Kennedy within the current political context as the Court’s swing vote, or perhaps more accurately, the “super-median.” In addition to Tribe’s thoughts on Kennedy, two political scientists have written (descriptive) book-length treatments of Kennedy’s jurisprudence. (Collucci 2009Knowles 2009). Both involve close readings of Kennedy’s opinions, but neither looks at his opinions/votes in economic cases, instead focusing on Kennedy’s well-known civil rights and liberties opinions (Collucci also looks at his federalism opinions). The key words from the titles of the books — “the full and necessary meaning of liberty” and “the tie goes to freedom” — gives one a fair picture of the authors’ arguments in regard to Kennedy.

But if a scholar with the prestige of Tribe is ready to lend the “great justice” appellation, one might ask which “Kennedy” Tribe (and Collucci and Knowles) are referring to: Casey or Carhart IILee v. Weisman or Sorrell v. IMS? Lawrence v. Texas or Ricci v. DeStefanoRoper v. Simmons or Town of GreeceWindsor or Alden v. Maine? Whether one wants to call it “liberty,” “equal dignity,” or freedom-based tiebreakers, it does not seem to get us much closer to a full understanding of Kennedy if the spotlight is on the former opinions to the exclusion of the oeuvre. (And one might suspect that Tribe, a man of the left, is focusing on the former cases).

A quick thumbnail sketch taking into account Kennedy’s entire jurisprudence shows him occupying a political space that vacillates between a reflection of elite opinion and conservative legal elite opinion. This may seem at first blush a banality — the term “elites” is sometimes thrown around casually, and it’s not always clear how much work the term is doing. But if one looks at the substance of elite policy preferences and conservative legal elite opinion, Justice Kennedy’s jurisprudence is better explained in regard to these concepts than the comparatively abstract terms “equal dignity” or “liberty.”

For its part, elite opinion tends to be economically conservative and socially liberal. Indeed, simply being affluent — making “merely” $146,000 per year (roughly 90th percentile) — means much the same: the affluent are more socially liberal and economically conservative than those further down the SES ladder. Thus it is not surprising that affluent policy preferences are taken into account by the governing elites, while middle-class and lower-income policy preferences receive much less solicitude (Gilens 2012). In fact, low-income policy preferences are essentially ignored by lawmakers (e.g., Bartels 2008).

The conservative legal elite might be usefully delineated — at least for a blog post — by who they are and what they believe. The “who” are certain members of the Supreme Court bar (e.g., Paul Clement), legal academics (e.g., the new originalists), social movement litigators (e.g., the Institute for Justice, the ACLJ), the solicitor general and the OLP in a Republican administration, movement organizations (e.g., the Federalist Society), lower court federal judges, especially feeder judges (e.g., Judges Kavanaugh and Kozinski) and the justices themselves, most obviously Justices Scalia, Alito, Thomas, and Roberts, each having at least some ties to the Federalist Society. (Of course, Scalia played a central role in helping nurture the Society).

The story of the substance of conservative legal elite opinion might start (perhaps a bit arbitrarily) with the OLP’s “The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation.” There, Edwin Meese’s DOJ highlighted a hoped-for revitalization of the takings and contracts clauses in addition to conservative judicial positions on social issues like abortion, affirmative action and the like.

In many respects, conservative legal elite opinion has not changed much since Reagan. For example, in recent issues of the Federalist Society law journal (Engage), one sees The Constitution in the Year 2000’s programmatic commitment updated for today’s legal issues. Writing shortly before King v. Burwell came down, one conservative law professor argued against the legality of administrative fixes to the ACA. Another article is titled: Does EPA’s Clean Power Plan Proposal Violate the States’ Sovereign Rights? The authors are quite certain that the question should be answered in the affirmative. The polling company the Federalist Society turns to with some frequency almost always concludes that voters & c. generally support conservative or libertarian legal results. Hans von Spakovsky — part of the vanguard who helped lay the legal and disputed empirical basis for Shelby Countywrites of the archaic nature of Section 5 of the VRA (political science research to the contrary). Wendy Long, former law clerk to Justice Thomas and counsel for the Judicial Confirmation Network argues that “Roe is anachronistic” based in part on “fetal pain” research (again, research that is tendentious). Another author makes the argument that the Roberts Court has not been terribly supportive of business (yet again, empirical evidence to the contrary (Epstein, Landes, and Posner 2013)). And a conservative law professor critiques a Sixth Circuit’s pro-affirmative action decision which the Court subsequently reversed (Schuette). In short, while the Federalist Society states, “[a]s always, [it] takes no position on particular legal or public policy initiatives,” the political views it provides a venue for seem monochromatic.[2]

Given the above, one can see that Kennedy’s views map onto the preferences of the elite (and affluent) fairly well.[3] On the socially liberal side of the coin, Kennedy’s views regarding abortion (Carhart II can cut either way), LGBT rights, marriage-equality, and his opinions circumscribing the reach of the death penalty are consonant with socially liberal elite policy preferences. The same can be said of his economic conservatism. Besides the obvious example of Citizens United, Kennedy has largely signed onto the economic agenda of the New Right as constitutionalized by the conservative legal elite. His Sorrell opinion is far-reaching in its scope as constitutionalizing, via the First Amendment, a deregulatory agenda for economic rights claims. Kennedy shows solicitude for private property, even invoking economic substantive due process in some cases where the Court’s other conservatives rely on the more traditional doctrinal hook, the takings clause.

The same can be said for non-constitutional economic cases. Kennedy has been in the majority coalition in many of the Court’s decisions forcing litigants into arbitration which has the de facto effect of minimizing business’s exposure to otherwise cognizable claims. Kennedy has been in the majority — some of the cases were unanimous — in the Roberts Court’s antitrust jurisprudence, a body of work the Heritage Foundation gave its imprimatur to. Indeed, according to Epstein, Landes, and Posner, Kennedy is one of the most business-friendly justices — especially in 5-4 splits — in the modern-era, even more so than Justice Scalia (though the difference is not statistically significant; Alito and Roberts are numbers 1 & 2). Justice Kennedy, 10,000 foot, is economically conservative and socially liberal.

But Kennedy, at times, also betrays the socially liberal elite. While Kennedy’s liberal civil liberties apostasies[4] are bemoaned by the conservative legal elite and the right-wing media, Kennedy may very well be the vote that takes down affirmative action in higher education, thus aligning himself with the conservative legal elite.[5] Joan Biskupic reported that Kennedy wrote an opinion for the Court’s five conservatives in Fisher I finding University of Texas’s affirmative action program unconstitutional, but backed down after Justice Sotomayor wrote a bracing dissent. It is too early predict with total confidence what the Court will do in Fisher II, but is seems plausible that, in the least, the Court’s four conservatives voted to grant cert with the hope of Kennedy standing firm this time around. What is more, Kennedy has been a consistent vote to strike down affirmative action policies in other contexts (e.g., Adarand). Kennedy has also largely signed onto the “colorblind constitution” espoused by conservatives, though not as forcefully as his fellow conservatives (e.g., Shelby County, Parents Involved, and Ricci).

It appears, then, “liberty” and “equal dignity” don’t have much explanatory purchase in regard to Justice Kennedy. Indeed, outside of the socially liberal carve-out Kennedy has made for himself in a handful of high-profile cases, he, and thus the Court, are solidly conservative. In fact, Kennedy’s economic conservatism — and even when the cases are not 5-4 this tells one more about the triumph of neoliberalism in regard to the Court’s liberals than anything else — is an underreported story[6]. (And there is no good reason to think that all the work political scientists have done documenting the elite capture of the elected branches might not apply as forcefully vis-a-vis the elites that make up the Court). At all events, future scholarship on Kennedy should take into account his entire body of work, and what this body of work says about his and the Court’s place in our political system. Too-quick paeans to Kennedy’s humanity or vacuous abstractions do not fill that picture.

[1] For some earlier attempts to rank the justice see here, here, and here.

[2] Not to say there are no differences. A fascinating vignette from historian Andrew Hartman’s new book on the history of the culture wars: as attorney general, Meese chaired a commission on pornography that concluded — perhaps prudishly to today’s ears — the material was “a social threat.”

[3] Simply by virtue of being a Supreme Court justice, Kennedy is a political cum legal elite. Kennedy is affluent as well. While being the least wealthy member of the Court, Kennedy still has a reported net worth between $330,000 and $700,000. The median net worth for a U.S. family is $81,200. Associate justices of the Court make $213,900 in yearly salary; the median family salary in the U.S. is $46,700. Thus, one would expect Kennedy’s policy preferences (Segal and Spaeth 2002) to be socially liberal and economically conservative.

[4] Scholars and journalists have made a persuasive circumstantial case that the “Greenhouse Effect” is not a conservative conspiracy theory and that Kennedy might succumb to such on occasion.

[5] Elite opinion supports affirmative action, though not necessarily for traditional civil rights reasons.

[6] Indeed, the fact that Kennedy signed onto what was a novel commerce clause argument with the Court’s other conservatives in NFIB is rarely mentioned when Kennedy (or the case) is discussed.

3 comments

  1. Clever analysis! Your analysis is important for highlighting the deficiencies of our government, especially regarding low and moderate income Americans. This is especially important where the Courts have been herald as the ultimate recourse for “discreet and insular minorities” or marginalized groups (Carolina Products, footnote 4). Thus, your analysis shows the juxtaposition between economic issues and marginalized protection within the Courts.

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