For Justice Kennedy, the Power of Being Earnest

  Supreme Court Justice Anthony M. Kennedy was at his most serious and most earnest as the keynote speaker at the annual meeting of the American Bar Association (ABA) in San Francisco last month [Aug. 10]. Greeting his audience as “fellow adherents to the rule of law,” Kennedy devoted the first half of a 26-minute speech to the national crisis in prison crowding before turning in the second half to the importance of civic education for young people.
   Kennedy had all the usual statistics about overincarceration in the United States: 2.1 million prisoners nationwide, including 160,000 in his home state of California — an imprisonment rate seven times greater than in England, France, or Germany. But he quoted as well from the Gospels — “I was in prison and ye came unto me” —  to stress the bar’s responsibility to address the crisis. Despite the prisoner’s offense, Kennedy concluded, “he or she is part of the family of humankind.”
   Kennedy was, if anything, even more didactic as he talked about instilling in young people a proper appreciation for “the meaning of freedom and its history.” “You cannot preserve what you have not studied,” the one-time constitutional law professor said. “You cannot protect what you do not comprehend. You cannot defend what you do not know.”
   Some in the press corps have been known to roll their eyes as Kennedy waxes lyrical in his speeches. His conservative critics — including his fellow justice, Antonin Scalia — sneer more pointedly when Kennedy veers into grandiloquence in his opinion. As one example, they cite Kennedy’s opening paean to the “transcendent dimensions” of individual liberty in his opinion for the court in Lawrence v. Texas (2003) striking down laws against gay sex.
   But make no mistake: Kennedy’s tendencies toward pomposity are nothing to be trifled with. Today, after a quarter-century on the court, Kennedy is clearly its most powerful individual member. Year after year, he is the justice with the fewest number of dissenting votes. “It’s the Roberts Court,” NBC’s Supreme Court correspondent remarked in his end-of-term wrap-up in June. “But Anthony Kennedy is the president and chief executive officer.”
   Kennedy is in fact more powerful than his former swing-vote colleague, Sandra Day O’Connor, who was given the title of “most influential justice” in Joan Biskupic’s biography a few years back. O’Connor’s tendency was to cast her often decisive vote in favor of splitting the difference between opposing views. Kennedy, by contrast, comes down hard on one side or the other: no muddled compromises in his majority opinions in closely divided decisions. Instead, as in Lawrence, Kennedy sets out explicit holdings, black-letter law for judges to follow with little of the case-by-case weighing that O’Connor often favored.
   As a result, Kennedy’s judicial legacy is of real, unmistakable consequence. And he has made his mark in areas that one might not have expected.
  Gay rights is the most recent and most obvious example. Kennedy authored the 5-4 decision in June, United States v. Windsor, that struck down the federal Defense of Marriage Act (DOMA), which barred marriage-based benefits to married gay and lesbian couples. He also wrote the court’s two previous gay rights landmarks: Lawrence and the earlier decision, Romer v. Evans (1996), that struck down a Colorado initiative barring the enactment of anti-gay discrimination laws.
  Gay rights advocates opposed Kennedy when he was nominated to the court in 1987, noting that he had ruled against gay rights plaintiffs in five cases while on the federal appeals court in California. With a keener eye, they might have recognized a gay rights supporter waiting to come out. In the first of the cases, Beller v. Middendorf (1981), Kennedy upheld the military’s policy of discharging homosexuals but only after acknowledging that “the choice to engage in homosexual action” might be “a fundamental right” entitled to “full protection as an aspect of the individual’s right to privacy.”
  Kennedy has also made his mark on sentencing issues. He has been the pivotal vote in a series of decisions beginning in 2002 that bar the death penalty for mentally retarded defendants, for juveniles, or in child rape cases. Kennedy also wrote the 2010 decision barring life without parole sentences for juveniles in non-homicide cases and led the follow-on decision to bar mandatory life without parole terms for juvenile murderers.
   As the court’s most consistent First Amendment supporter, Kennedy can also take credit for the string of rulings under Chief Justice John G. Roberts Jr. generally backing freedom of speech. Indeed, according to insider accounts, it was Kennedy who prevailed on Roberts in the campaign finance case, Citizens United v. Federal Election Commission (2010), to turn a narrow ruling into a broad guarantee of political speech rights for corporations.
   On the bench as in his writing, Kennedy is always in earnest. Other justices engage in an occasional joke or witticism, but Kennedy hardly ever if at all. He came to the court as a safe choice after the Senate rejected the combative conservative, Robert Bork, as outside the mainstream. Instinctively mild of manner, Kennedy might have been expected to recede to the background. Instead, with the court about to begin a new term, he once again is the justice that lawyers focus on as they fashion their arguments and the justice that court watchers watch as they handicap the term’s cases.