The law is the story of our moral life.
Anthony Kennedy, July 26, 2018
Anthony Kennedy wrote both Obergefell and Citizens United . From the perspective of political liberals, his legacy is half valiant and half dastardly, upholding gay rights while allowing corporate money to corrupt democracy; political conservatives equally see him as half right and half wrong, grounded in the opposite aspects of his legacy. Political science models that explain Justices in simple terms of political ideology simply cannot account for one of the most influential Justices of post-World War II America. Kennedy was a quiet lion of an independent-minded judiciary, whose presence determined many outcomes of a divided Supreme Court and whose departure signals a dramatic shift in the future of the Court.
Kennedy’s Legacies
Kennedy offers dual legacies: often described as a swing voter, but on the whole more conservative than not; defender of both free speech and gay rights , which came into conflict during his last term in Masterpiece Cakeshop; loved and hated by many citizens as the Justice who upheld and abandoned their causes in the critical 5-4 cases. Justice Kennedy emerged in the tumultuous conflict over the nomination of arch-conservative Robert Bork , and his departure spurred the public conflict over the nomination of Brett Kavanaugh . Like Kennedy’s nomination and retirement, his legacies are a reflection of the divided political and constitutional culture of contemporary politics.
Toward the end of his second term, President Ronald Reagan nominated Robert Bork —an undisputed conservative intellectual and unabashed originalist with a long written record of his thinking combined with a willingness to discuss it. Bork was Reagan’s third nomination to the Court, following Sandra Day O’Connor and Antonin Scalia . The contentious fight and ultimate rejection by the Senate began the new era of partisan dispute over Supreme Court nominations; while O’Connor and Scalia were approved without dissent (99/0 and 98/0), Bork was rejected by a vote of 58/42. The replacement selection—the now mostly forgotten other Ginsburg, not Ruth Bader Ginsburg , but Douglas Ginsburg—withdrew from consideration after revelations of pot smoking while a professor at Harvard. The final compromise selection was Anthony Kennedy , whose thirty years to follow as one of the least-predictable Justices on the Court reflected the circumstances of his nomination. He was selected amidst polarized partisan conflict to be confirmed more easily; he served during a polarized time as the somewhat-swing voter; and his retirement sparked renewed partisan conflict over his replacement, who would likely shift the balance of the Court.
While Kennedy was often discussed as a swing-voter, he often swung more right than left. In his last term (summarized in this book), he ruled with the conservatives on all of the major decisions, including Trump, Janus, Carpenter, Husted, and Masterpiece Cakeshop. In addition to Citizens United (2010), he ruled with the conservatives in Lopez (1995) limiting the power of Congress under the Commerce Clause (5-4); with the conservatives in Grutter v. Bollinger (2003) opposing affirmative action as violating equal protection (on the losing side of the 5-4); with the conservatives in Heller (2008) on recognizing gun rights as fundamental under the Second Amendment (5-4); with the conservatives in NFIB v. Sebelius (2012) on the constitutionality of Obamacare (again on the losing side of the 5-4); and with the conservatives in Shelby County (2013) limiting the Voting Rights Act of 1965 (5-4). However, he is best known for his liberal rulings on free speech and especially gay rights . To try to understand this in terms of allegiance to Left or Right policy outcomes is to misunderstand both Kennedy and the Court. Kennedy was not a political ideologue. Nor was he a “moderate,” a term which has little meaning. He had distinct views of the Constitution that were not directly partisan, but represented a different way of seeing the role of a Justice of the Supreme Court, a way that will be missed.
Kennedy’s approach to the Constitution can be understood in a few different ways. One is that he did not agree with either the originalists or the living constitutionalists on how the Constitution should be read. The originalists believe the document should be read for the intent of its authors (the ‘original public meaning’). That meaning is fixed until amended; hence, the principles of the Constitution do not change (though prevailing social facts do). Living constitutionalists, on the other hand, argue that we should read the document as contemporary Americans do, especially in regard to concepts like liberty and equality, whose meanings have shifted. Principles of the Constitution can alter or emerge over time (like privacy or dignity). Prevailing social facts can change as well, which may demand a shift in principles. Another way of phrasing the debate between advocates of an original or a living Constitution is whether the primary responsibility for recognizing change is the duty of legislatures or courts. Can the Justices recognize expanded rights under new conditions, or is that the province of electoral democracy rather than judicial democracy ? One side trusts Justices to perceive changes in constitutional principles, while the other side does not. One side trusts citizens to govern through elections unless the outcome blatantly violates a clear constitutional protection, while the other side does not.
Kennedy was not persuaded by either of these views. He was neither an originalist nor a living constitutionalist , but more of a common law constitutionalist.1 He sought incremental changes responding to new challenges, seeking a workable rule that addresses real-world circumstances rather than a devotion to an abstract school of interpretation. He upheld a personal and pragmatic as well as principled Constitution. Speaking to the Ninth Circuit Judicial Conference after announcing his retirement, Kennedy said that, “behind the cases there’s always a real person. That’s the whole idea and meaning of the law.” Kennedy’s quote in the headnote to this chapter echoes Oliver Wendell Holmes Jr.’s famous line that the life of the law is not logic, but experience.2 Kennedy was acutely aware of the personal impact of the Court’s decisions and the practical concerns of how those decisions are implemented.
Another way to summarize Kennedy’s legacy is his deep commitment to a free society. Many Americans think of Kennedy as an advocate of gay rights . He was not. He was an advocate of a free society, which led to gay rights. He was also an advocate of other aspects of a free society, such as freedom of speech and freedom of religion. Kennedy did not see these liberties as contradictory, even when advocates of one policy or the other thought they were. The three domains for which Kennedy is best known illustrate his dual legacy of liberty and pragmatism: abortion , free speech , and gay rights . In all of these areas, he tended to join the liberal side of the Court (though not always), but perhaps more importantly, he defined the type of liberal decision that was delivered, shaping these areas of constitutional law.
Abortion
When Roe v. Wade from 1973 was re-visited in 1992, it looked like the Court might overturn the constitutionally protected right of abortion in the United States. Kennedy co-authored the controlling opinion in Casey (with O’Connor and Souter) that upheld the core of Roe, while allowing regulations of abortion that did not create an undue burden on the right.3 However, in 2007, Kennedy sided with the conservatives to uphold the constitutionality of state laws banning late-term abortions . He wrote the decision that allowed such regulations on the grounds of the gruesome facts of the procedure.4 While some criticized him for dwelling on the descriptions of the medical procedure, Kennedy saw clear facts as important; if “law is the story of our moral life” (as Kennedy said at the end of his career), then the facts of that life matter, they change over time, and they should be witnessed forthrightly.5 In 2016, he sided with the liberals in Whole Woman’s Health to strike down the Texas effort to regulate safety provisions in a way that would force the closing of the few clinics in the state.6 Again, the facts on the ground mattered as much as the principles. And this last term in NIFLA (discussed in Chapter 5), he ruled with the conservatives that organizations counseling against abortion were protected from a state regulation forcing them to provide specific information about the availability of abortion services. In each case, the right of privacy that protects the abortion decision was maintained, but the specific facts of the surrounding circumstances counted as well. For the last thirty years, Kennedy’s combination of principle and pragmatism defined the law of abortion in the United States: legal but limited.
Free Speech
The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result….
The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.7
A few years later, Kennedy wrote that “the First Amendment is often inconvenient.”8 It is also often unpopular, which was the case when the Westboro Baptist Church picketed the funeral of a fallen Marine and held signs expressing hateful sentiments. But in Snyder v. Phelps in 2011, Kennedy joined Chief Justice Roberts ’ opinion upholding the right of expression, even in these circumstances. In Alvarez in 2012, Kennedy also upheld a constitutionally protected right to lie about military medals awarded, striking down the Stolen Valor Act. To Kennedy—like to Scalia in regard to flag burning—such behavior is repulsive but protected, given the higher principle that “The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.”9
When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.10
Whether it annoys the Left in Citizens or the Right in Alvarez, Kennedy believed free speech was triumphant. His ruling in Citizens protected the free speech rights (and therefore the right to contribute money) of corporations. Kennedy has been criticized in this ruling for not taking into account the surrounding facts of corporate speech and its potential to drown out the representation of living citizen voters.11 But Kennedy is convinced that freedom of speech is a higher principle and a stronger bulwark of democracy. In the free speech cases this term—Janus and NIFLA (see Chapter 5)—Kennedy clarified the dangers of coerced speech as “the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression… Government must not be allowed to force persons to express a message contrary to their deepest convictions.”12
Gay Rights
Kennedy wrote the four major gay rights decisions of the last three decades: Romer, Lawrence, Windsor, and Obergefell. He also wrote the decision that limited this line of rulings in Masterpiece Cakeshop. During a time-period in which public attitudes toward the acceptance and normality of LGBT sexual identity shifted dramatically, Kennedy adapted the law of the Constitution to these changing social facts .
The cases begin and end in Colorado. Romer v. Evans in 1996 struck down an amendment to the Colorado state constitution (approved by voter initiative), disallowing any state action affording LGBT citizens “to have or claim any minority status, quota preferences, protected status or claim of discrimination.” Kennedy wrote that this amendment raised “the inevitable inference” that it was “born of animosity toward the class of persons affected,” reflecting a “desire to harm a politically unpopular group.”13 Seven years later in 2003, Kennedy wrote the most far-reaching gay rights decision to that time in Lawrence v. Texas , ruling that state laws criminalizing homosexuality were unconstitutional. A state’s power to regulate society was limited to health and safety, but did not extend to morality. A decade later, the Court began to address the public controversy over same-sex marriage by first considering the definition of marriage codified in DOMA (the Defense of Marriage Act signed by President Bill Clinton in 1996). U.S. v. Windsor in 2013 was a tax case, in which Edith Windsor had been denied the federal estate tax exemption for surviving spouses (which she would have been granted had her spouse been a man).14 Kennedy ruled that DOMA’s definition of marriage treated heterosexual marriages and same-sex marriages differently in a way that violated due process and equal protection. The most important case, however, was Obergefell v. Hodges in 2015, which overturned all bans on gay marriage in all states, ruling that same-sex marriages were constitutionally protected. Together, these four rulings established in sequence between 1996 and 2015 that states could not openly target gay citizens; that laws criminalizing homosexuality were unconstitutional; that the federal government lacked the power to define marriage as one man and one woman; and finally that same-sex marriage had to be recognized. Kennedy was the architect of all of these decisions and their constitutional foundations.
While the legal results in these cases were celebrated in many quarters, many readers still questioned if Kennedy was building the firmest constitutional basis for the rulings. The culminating decision in Obergefell ruled that marriage is a fundamental right and therefore a state limitation on how individuals define that institution is a violation of the Constitution. This is not what many scholars expected the Court to do. Kennedy may have been on stronger ground by expanding the Equal Protection Clause to encompass gay rights , arguing that Equal Protection applies to sexuality as well as to race and gender as a protected class. Alternatively, I believe he would have been on stronger ground to have stated that the Establishment Clause of the First Amendment forbids laws that are essentially religious or clearly religiously motivated, which includes bans on gay marriage. However, Kennedy’s approach to gay rights rested on the concept of dignity .15
adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons
The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged.16
Responsibilities, as well as rights, enhance the dignity and integrity of the person.
DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple… whose relationship the State has sought to dignify.17
The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life.
There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.
The final sentences of the ruling are, “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”18 While dignity has a certain rhetorical appeal, it may be more compelling than constitutional (see Chapter 6).19 Many have argued that dignity is not the strongest reed on which to rest constitutional decisions, given that (1) it is not protected in the text of the Constitution and (2) it applies to many holders of rights whose claims may conflict (including both LGBT citizens and religious observers). In his dissent to Obergefell, Justice Thomas provides an entirely different rejoinder to dignity as a foundation for law: “it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests that instead it comes from the government.”20 Thomas ’s point illustrates the lack of clarity in what dignity as a constitutional concept entails, especially who holds it, or who holds more of it than someone else, or who could take it away.
Kennedy clearly believed that dignity was an aspect of marriage and of the autonomy to identify one’s own sexuality, but he also believed that several other claims to rights reflected aspects of dignity. In an Eighth Amendment case on the death penalty, Kennedy invoked “the dignity of all persons.”21 In Casey on abortion rights, he described such decisions as “the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.”22 In his ruling for the majority in Akron Center in 1990 (upholding the constitutionality of restrictions on minors seeking an abortion), he wrote of the dignity of the woman (“her decision will embrace her own destiny and personal dignity”), but four sentences later of the dignity of the minor’s family. (“It would deny all dignity to the family to say that the State cannot take this reasonable step in regulating its health professions to ensure that, in most cases, a young woman will receive guidance and understanding from a parent.”)23 Perhaps most significantly for his decision in Masterpiece Cakeshop, Kennedy argued that dignity also applies to religious believers: “In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts.”24
Returning to Colorado in Masterpiece Cakeshop in 2018—three years after Obergefell and 22 years after Romer—Kennedy addressed the competing claims of the dignity of a gay couple seeking a wedding cake and the religious liberty of a baker who did not wish to fashion a cake to celebrate their wedding. In the oral arguments, Kennedy asserted that the treatment of Christians by the state of Colorado was “neither tolerant nor respectful,” as the Constitution requires.25 The couple held dignity, but so did the baker. The line of gay rights decisions grounded in dignity had reached their limit. Kennedy sees dignity as inherent in several aspects of democratic life, all equally protected by the Constitution. In the end, we are left to evaluate the implications of Kennedy’s core argument that dignity is implicit in the Constitution’s broader meaning and that it reinforces a range of rights from government interference.
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.26
Kennedy’s greatest legacies—and where he is most open to critique—are in the areas where he led the development of constitutional law in a bold fashion that established new rights at the confluence of expanding liberty and evolving circumstances. His legacy is high-minded, but perhaps ungrounded; path-breaking, but perhaps not on a clear path that future decisions can follow. His approach has its critics and has perhaps reached its limit, but it shaped constitutional law in our era. Many have argued that Kennedy swung left on policy when it came to gay rights , free speech , and abortion ; he did not—he swung in favor of liberty tempered by changing facts. He was deeply committed to a free society, which was free and dignified for all people, encompassing freedom of speech, freedom of reproductive autonomy, freedom of sexual expression, and freedom of religious expression. He felt the need to examine changing social facts as well as constitutional principles, leading to a complex legacy that defies the more common categories of thought.
The Post-Kennedy Court
Scalia’s replacement with Gorsuch did not fundamentally shift the Court, but Kennedy’s replacement with Kavanaugh will certainly do so. Kennedy’s departure leaves the Court comprised of originalists (Thomas , Gorsuch, and Kavanaugh), quasi-originalists (Alito and Roberts , who hold greater regard for precedent and concern for the political ramifications of the Court’s decisions), and living constitutionalists who are aging (as of 2019, Kagan is late 50s, Sotomayor mid 60s, Breyer early 80s, and Ginsburg mid 80s). The future balance of the Court depends on how long President Trump can remain in office versus how long the liberal Justices can remain on the bench. The previous 4-1-4 Court—Breyer , Ginsburg, Kagan , and Sotomayor on the left, Kennedy in the middle, and Alito , Gorsuch, Roberts , and Thomas on the right—has been replaced by a 5-4 conservative Court. If Thomas retires strategically before Trump faces re-election, this would allow a Republican President and Senate to replace him, cementing a longer term conservative majority. If one more liberal Justice is replaced with a judicial conservative during Trump’s presidency, this would move the Court to a 6-3 conservative majority, leading to deeper and longer lasting effects. So the Court’s composition faces two competing timelines: Trump’s longevity in office and the current Justices’ longevity on the Court. Who can stay longer, Trump facing investigation and the 2020 election or the Justices facing time?
A conservative or originalist Court has not existed in contemporary (post-World War II) American politics, so its potential influence is not fully appreciated. Such a Court will focus on the specific limits of the written document, emphasizing the bounds, principles, and rights recognized under the original Constitution: boundaries on federal government power; principles such as federalism , ordered liberty, and separation of powers ; and the rights that are clear and enumerated. This will lead to rulings that emphasize electoral democracy over judicial democracy , raising the power of state legislatures and lowering the role of the Court in overturning their actions. The shift toward a majority of originalists (or at least conservatives) will likely mean that the recognition of new rights will cease; gun rights will be recognized more fully; the Interstate Commerce Clause will contract, limiting the power of Congress to enact regulation; First Amendment rights to freedom of religious exercise and freedom of speech will be recognized more broadly; separation of powers will be enforced against bureaucracies, meaning that executive branch agencies will be seen as less independent and less empowered to enforce regulations not enacted by Congress; affirmative action will face greater scrutiny and limitation; and the executive branch will be allowed greater deference to act on perceived threats to security. In the three areas of Kennedy’s core legacy, abortion rights under the right of privacy will likely contract (though how far is unknown); gay rights have likely reached their limit; and free speech will likely maintain Kennedy’s position of a strong First Amendment reflecting both speech and religious exercise.
These suggestions about the future are, of course, speculative. Kennedy saw the law as oriented toward the future, as a promise: “For us law is a promise. It’s a promise of liberty, it’s a promise of freedom, it’s a promise that we can plan our own destiny. And that’s what we do as lawyers. That’s what we do as judges.”27 He also believed in the teaching role of the Court. Essentially home-schooled as a child by his teacher mother and attorney father, he went on to teach evening courses in law school for twenty years before joining the Supreme Court. He saw the Court’s work as a form of persuasion combining principle and practicality: “Over time I think the Supreme Court is a majoritarian institution: the majority of the country begins to see that these litigants, these people, real people, had a real injury the Court addressed, and our commitment to the rule of law, our commitment to decency, is such that most of our decisions are accepted over time.”28 He did not want the Court to teach an ideological vision of a living Constitution or an original Constitution. He seemed to believe in a problem-solving and teaching Constitution, in some degree a personal Constitution that protected individual dignity in ways that conflict as well as intersect. His was a complex Constitution for simpler times, on its way to being replaced by the opposite.