Compared To What?

I’m certainly no admirer of Justice Kennedy’s jurisprudence, but I nevertheless found Eric Posner’s critical (of both Kennedy and the book) review of a recent book about AJK somewhat slippery and disappointing. I haven’t read the book, but according to Posner Colucci argues that Kennedy’s jurisprudence is more internally consistent than Kennedy’s harshest critics acknowledge. Posner will have none of it:

For Kennedy’s libertarian reading of the Constitution to be jurisprudentially respectable, that reading must be based on the text of the Constitution, Founding-era understandings, precedents, constitutional traditions, or other legal sources external to his moral views. Otherwise, he cannot duck the argument that he simply enforces his moral views, which happen to be libertarian.

Colucci identifies some clues but they do not add up to a jurisprudence. Kennedy endorses the familiar idea that judges should not enforce the original understanding of the Constitution, but should constitutionalize and enforce evolving social values. Yet Colucci offers no evidence that Kennedy tries to enforce evolving social values. Why does Kennedy believe that society gives priority to liberty over all the other evolving social values that could be identified—equality, diversity, and privacy, to name a few? Neither Colucci nor Kennedy answers this question. Lacking an explanation, Colucci’s defense of Kennedy doesn’t make any headway against the suspicion that Kennedy votes his moral instincts, thus abusing his judicial role.

This line of criticism — which is based on what I would see as an excessively formal separation between law and “moral instincts” — has some clear flaws as a criticism of Kennedy in particular. If the claim is that Kennedy literally does nothing but vote his moral instincts, entirely ignoring “legal sources” — the claim is quite clearly false, unless you think that Kennedy favors every economic regulation passed by Congress or a state government that wasn’t stuck down by the Courts during his tenure. If we assume that Posner is making a more plausible claim — that Kennedy’s moral and political values affect his decisions in cases in which legal materials plausibly support multiple conclusions — then the criticism is true but lacks much bite insofar as no Supreme Court justice has a “jurisprudence” by this standard. No justice — most certainly including Scalia and Thomas — consistently finds that “legal materials” trump their most cherished moral instincts.” (It should also be probably be noted here that Posner’s excoriation of Kennedy manages to leave out the worst opinion Kennedy will ever write, which was of course joined by the conservative justices we’re implicitly meant to believe are more principled. Anybody care to mount an “originalist” defense of Bush v. Gore?)

So why single out Kennedy here? Posner does have an answer:

Kennedy stands out from his colleagues because of the frequency with which he votes to strike down statutes, and the vapid, flowery language he uses to explain his decisions. His aggressive posture toward statutes jars democratic sensibilities, and cuts against a scholarly trend favoring judicial deference. Although striking down statutes is hardly new, in the current environment it demands a more muscular justification than Justice Kennedy has delivered. Instead he delights in gaseous pronouncements. [“Meaning of life” passage from Casey that according to federal law must be cited in every conservative critique of Kennedy although it’s not terribly important to the opinion omitted.]

The fact that Kennedy’s opinions do contain some irritating prose isn’t very helpful to the larger points under discussion, since they hardly constitute the entirety of the justifications offered in the long opinions in which they’re embedded. The claim that Kennedy is worse than other Justices because he votes to strike down statutes with an unusually high frequency would be more convincing. But the problem is that it’s not true. While it’s literally true that Kennedy voted to strike down more statutes than any member of the late Rehnquist Court, every justice on the Court with the exception of Rehnquist voted to strike down legislation at an essentially similar rate.

While I can’t say anything about Colucci’s book, then, I wouldn’t say that Posner’s rebuttals are very convincing.