Ilya Shapiro, "The Sweet Mystery of Anthony Kennedy"
With commentary by Professor Daniel Hemel
Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. Before joining Cato, he was a special assistant/adviser to the Multi-National Force in Iraq on rule-of-law issues and practiced at Patton Boggs and Cleary Gottlieb. Shapiro is the co-author of Religious Liberties for Corporations? Hobby Lobby, the Affordable Care Act, and the Constitution (2014). He has contributed to a variety of academic, popular, and professional publications, including the Wall Street Journal, Harvard Journal of Law & Public Policy, L.A. Times, USA Today, Weekly Standard, New York Times Online, and National Review Online. He also regularly provides commentary for various media outlets, including CNN, Fox News, ABC, CBS, NBC, Univision and Telemundo, the Colbert Report, and NPR.
Mr. Shapiro holds an AB from Princeton University, a Masters from the London School of Economics, and a JD from the University of Chicago Law School, where he was a Tony Patiño Fellow. After graduation, he clerked for Judge E. Grady Jolly of the U.S. Court of Appeals for the Fifth Circuit.
Professor Hemel graduated summa cum laude from Harvard College and received an M.Phil with distinction from Oxford University, where he was a Marshall Scholar. He then earned his J.D. from Yale Law School, where he was editor-in-chief of the Yale Law Journal. Prior to his appointment, he was a law clerk to Associate Justice Elena Kagan on the U.S. Supreme Court. He also clerked for Judge Michael Boudin on the U.S. Court of Appeals for the First Circuit and Judge Sri Srinivasan on the U.S. Court of Appeals for the District of Columbia Circuit, and served as visiting counsel at the Joint Committee on Taxation.
Daniel Hemel’s research focuses on taxation, risk regulation, and innovation law. His current projects examine the role of the President in tax administration; the tax treatment of embedded options in home mortgage loans; and the use of cost-benefit analysis by the Internal Revenue Service. As an assistant professor at the University of Chicago Law School, he teaches tax, administrative law, and torts.
Presented by the Federalist Society on April 12, 2016.
Announcer: This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.
Host: I'm very excited about the talk we have for you today, put on by the Federalist Society, "The Sweet Mystery of Anthony Kennedy." And here to talk about that, we have Mr. Ilya Shapiro from the... he is a senior fellow at the Cato Institute. Mr. Shapiro graduated from Princeton University. He also holds a master's from the London School of Economics before he came here to receive his JD at the University of Chicago Law School. Here to provide commentary, we have our very own, Professor Hemel. Professor Hemel graduated from Harvard College and then has a masters in philosophy from Oxford University before he went on to get a JD at Yale Law School. From there, he went onto clerk with Judge Michael Boudin of the US Court of Appeals for the First Circuit, Judge Srinivasan. I don't know how to pronounce his name.
Daniel Hemel: You'll learn how to pronounce his name soon.
Host: ...from the DC circuit. Then he went on to clerk for Justice Elena Kagan of the US Supreme Court. So without further ado, I will hand it over to Mr. Ilya Shapiro.
Ilya Shapiro: Thanks very much. I'm glad to finally get here this year. I was supposed to come in October, but the Windy City proved true and my flight was delayed for wind for four hours. I'm just glad that I wasn't bumped for the President on this visit. I assumed that he was a sufficient warm up speaker for this event. And actually I know that a lot of you couldn't get in. There was some sort of lottery. So, I guess this is the door number two, consolation prize or what have you. This is a talk that I've given a few times over the years. It arose out of a Harvard Journal of Law and Public Policy article that I wrote six years ago now that I have been updating ever since. The newest version of it was going to be published in the Weekly Standard early this year, but then Justice Scalia passed away and so all court related things were sort of in flux. I'm told now that it will run in late May, early June, right ahead of the big cases to be decided this term or not, but we will see what happens. But anyway, this is a... if you, if you get the Weekly Standard, this might be a preview.
Ilya Shapiro: So in an appearance at Harvard Law School in October, Justice Kennedy said the cases swing, I don't. Fair enough. However much scholars and pundits pull their hair out trying to understand him, it's not really opportunism or flip flopping that drives them crazy. That might have described his predecessor as the court swing Justice Sandra Day O'Connor, the former state legislator who took a pragmatic approach, but it's hard to tar Kennedy with that brush. Inscrutability doesn't necessarily mean political calculation. Still anyone with even a passing interest in the court knows that this soft spoken lawyer from Sacramento provides the deciding vote in all the close rulings that rile the nation in those highly charged cases that breakdown on ideological lines, all eyes are on Justice Kennedy: on the contraceptive mandate, abortion, affirmative action, voting rights, immigration. And that's just this term. His views become the law of the land, and even after Justice Scalia's death, he'll remain in the middle of the court unless the President Hillary Clinton with a Democratic Senate manages to confirm a left wing ideologue.
Ilya Shapiro: The statistics bear this out. In every term but two since Justice Alito replaced O'Connor a decade ago. Kennedy was the winningest justice typically in the majority over 90 percent of the time. In that time, Kennedy has always led the league in being on the winning side of five-four splits including all 24 such cases in '06 and '07, and all 10 in 2013, 2014. But what does this mean for understanding Kennedy's approach to his craft? Is he simply a moderate who agrees with conservatives some of the time and the Liberals other times? Or perhaps he's a libertarian, which in this context might amount to the same thing? In a sense, these labeling questions are the wrong ones to ask. By definition, the jurist at the center of any court will split the difference and wind up prevailing more than anyone else. And also by definition, libertarians agree with conservatives on some things and progressive's on others, as do populists, the mirror image of libertarians, but I don't think anyone pegs Kennedy as a Trump supporter or references the Court's populist moment.
Ilya Shapiro: And Kennedy has agreed with the legal positions of the Cato Institute more than any other justice. If we lose his vote, chances are we've lost the case. Though this measure isn't statistically significant. Such simplifications don't say anything about Kennedy's thought process, predict his vote or instruct on how to appeal to him because Lord knows the Supreme Court bar tries to do that. Filing Kennedy briefs that cite his greatest hits and otherwise try to activate his affinity. Take the briefs that super lawyers, Ted Olsen and David Boies, the big rivals in Bush versus Gore coauthor in Hollingsworth versus Perry, previous gay marriage case, whose introduction focused on dignity and personal autonomy as well as love, commitment and intimacy. All buzzwords in the Kennedy lexicon. In 2009, two political scientists coincidentally published books on Kennedy and these remain the most detailed exegeses of his jurisprudence. Frank Carlucci looked at the Justice's public writings, including materials beyond legal opinions.
Ilya Shapiro: He wrote a book called Justice Kennedy's Jurisprudence: the full unnecessary meaning of liberty. His thesis is that Kennedy strives to interpret the constitutional texts in a way that properly respects the liberty that is its highest value, trying to reconcile the founder's intent with contemporary values. And this echoes Kennedy's explication at his confirmation hearing in 1987 of the judicial role "to ensure that the word liberty in the Constitution is given its full and necessary meaning consistent with the purposes of the document as we understand it." Helen Knowles took a less sweeping approach while trying to prove a narrower point that at least in some key areas of law that he's a modest libertarian. Her book is called The Tie Goes to Freedom: Justice Anthony Kennedy on Liberty. While exhaustive and nuanced and definitely recommended reading, these books are still unsatisfying because Kennedy's rulings defy categorization into standard judicial methodologies.
Ilya Shapiro: It makes you wonder why the leading books about this man who's played the central role in our legal world for so long were written by assistant professors in small school political science departments rather than top law professors or legal journalists at elite publications. Maybe the subject matter is just too frustrating to craft the workable narrative. Yet Kennedy famously wrestles with legal doctrine and tries to maintain internal consistency. You wouldn't be listening to me now if it weren't worth trying to understand and explain him. Just because someone's body of work is unconventional doesn't mean it's incoherent or unimportant. In June 2012 as the nation awaited supreme court rulings on Obamacare and gay marriage, Time magazine put Kennedy on its cover with the screaming headline "The Decider." In that cover story, Ninth Circuit Judge Alex Kosinski, who heads up Kennedy's clerkship screening committee, is described as explaining that, "Kennedy's agonized thought process is a sign of open-mindedness and empathy, not indecision.
Ilya Shapiro: His way of making up his mind in tough cases frequently was for him to try out an idea for size, like trying on a hat, wearing it for a day, saying, well, maybe I don't look so good in a stetson. I think I'll try a sombrero instead." Regardless of the correct headgear, perhaps court watchers are overdoing it in giving all this attention to the Hamlet on the Hill too hasty in labeling this the Kennedy court. After all, for all the focus on Kennedy in 2012, it was John Roberts who provided the deciding vote to save Obamacare that term and it was John Roberts who would delay the Court's ruling on gay marriage by finding a procedural way to dismiss. And even if Kennedy wrote the opinions in the gay rights cases of Windsor and Obergefell, it's the Chief who was the face of the equally politicized voting rights case
Ilya Shapiro: Shelby County v. Holder. More tellingly, while Kennedy wrote the opinion in arguably the most controversial case of the last two decades, Citizens United, his vote there was never in any doubt. It's Roberts who dictates how far the Court goes on campaign finance, and it was Robert's concurrent opinion regarding starry decisis, this is in Citizens United, that set the tone for the ruling. Nevertheless take away the two Obamacare cases and Roberts wouldn't be in this conversation. Not because his brand of minimalism and deference hasn't put a stamp on the court or because he doesn't write other important opinions, but because nobody can accuse Roberts of being moderate generally. Kennedy, on the other hand, abides in the middle in a way that more often than not shapes the Court's direction. To put a finer point on those earlier statistics, since the Court's current roster was set by Justice Kagan's arrival in 2010, Kennedy has been on the winning side of 84 percent of cases that have split five-four while his colleagues are clustered between 45 and 61 percent. As SCOTUS blog founder Tom Goldstein put it,
Ilya Shapiro: "It's Justice Kennedy's world and we just live in it." So let's take a look at the areas of law where Kennedy has made his mark: free speech, gay rights, race, government power, and abortion to try to glean his overall approach. While Kennedy is no free speech absolutist like Hugo Black, he more than anyone else, has no tolerance for content based restrictions. According to a study by a Eugene Volokh, in the latter half of the Rehnquist Court during which there were no changes in personnel, Kennedy took the pro-speech position three quarters of the time, by far the most. Justices Thomas and Souter were the next best, which is kind of curious to have Kennedy, Thompson, and Souter as the most free speech or the most anything, by any measure, it's kind of an interesting result. But if these jurists indeed that are so diverse are the doctrinal lone stars maybe the underlying constitutional provision, the First Amendment, maybe that's what's not coherent.
Ilya Shapiro: Well, actually, yes says the éminence Grise of libertarianism, Richard Epstein, in his seminal seminal article, "Properties, speech and the politics of distrust." Kennedy's jurisprudence here aligns with three major arguments against content based speech restrictions, anti paternalism, the protection of individual liberty and autonomy by preventing the government from distorting public discourse and efforts at content based speech restriction are often driven by suspicious government motives. In case after free speech case, Kennedy shows the importance of tolerance in the market of ideas, whether you're talking about Texas v. Johnson, the flag burning case or his dissent in Hill v. Colorado. Where a six justice majority upheld 100 foot abortion clinic buffer zone. Recently in McCullen v. Coakley, he joined Roberts' majority opinion along the same lines, and of course in Austin v. Michigan Chamber of Commerce, he dissented from an anomalous ruling that for the first and only time upheld the campaign finance restrictions on a basis other than the interest in preventing quid pro quo corruption.
Ilya Shapiro: Twenty years later, of course he had the chance to reverse Austin in Citizens United. "If the First Amendment has any force," he wrote there, "it prohibits Congress from fining or jailing citizens or associations of citizens for simply engaging in political speech." Now, as important as Kennedy's work on the First Amendment is, he's now most identified with last summer's landmark ruling on gay marriage. Indeed, Obergefell was the fourth case involving sexual orientation which Kennedy not only voted to strike down a restriction, but wrote the opinion. in Romer versus Evans, where the court ruled against the Colorado constitutional amendment that banned antidiscrimination laws regarding sexual orientation, Kennedy began his opinion with a quote from Justice John Marshall Harlan's solo dissent in Plessy v. Ferguson intimating that sexual minorities are no less entitled to equality than racial ones. In Lawrence v, Texas, Kennedy led the charge in striking down Texas' anti-sodomy law, a result he found so obvious that he wrote the opinion in one weekend. That opinion caused Randy Barnett, the intellectual godfather behind the constitutional challenge to the individual mandate, another a libertarian.
Ilya Shapiro: I don't know if he would want to be called an éminence Grice quite yet, but he's up there obviously. But he called Lawrence Kennedy's libertarian revolution. Alas, Kennedy's opinions in Windsor which struck down the part of DOMA that denied federal benefits to lawfully married, same sex couples in Obergefell were even more of a doctrinal mess. Windsor combined elements of federalism and equal protection to ultimately find that DOMA violated the Fifth Amendment due process clause by depriving married couples of dignity and protection, and in Obergefell, what in my mind should have been an easy case about the propriety of certain marriage licensing schemes, instead, it became a purple disquisition on I'm not really sure what. He tried to write for the ages, but rather than making an epochal statement about the equality of gays and lesbians, he produced a meditation on how the Constitution protects, "a liberty that includes certain specific rights that allow persons within a lawful realm to define and express their identity."
Ilya Shapiro: The rule of Obergefell seems to be that you take a scoop of due process, a cup of equal protection, sprinkle on some dignity, wrap it in a bow and Voila. That's not law. I've written elsewhere that Kennedy got it right for the wrong reasons or for no reasons, it's bizarre, bizarre case. I filed an originalist brief on the equal protection clause supporting the challenges if you want to read what I think would have been a more straightforward of reaching it. And there are some indications that Justice Ginsburg even agreed with that. You know, she said it was important to hold the line and not have separate concurrences and so just went along with Kennedy's waxing.
Ilya Shapiro: Kennedy filled his opinion with verbiage about how marriage has promised nobility and dignity to all persons. That denying this civic sacrament to same sex couples would disparage their choices and diminish their personhood. Of course, as Chief Justice Roberts noted in his dissent, there's no nobility and dignity clause. So we have to translate Kennedy's hand waving into an observation that the government demeans same sex couples by treating them differently. His writing in Obergefell has been used as readings at weddings, gay and straight, ever since. And obviously it will be printed in case books, but it's, it's hard to tell again what the rule of decision here. I guess his synthesis can best be called equal liberty, a rejection of the conservative idea that people seeking protection for their intimate conduct must find it in the legislature.
Ilya Shapiro: But regardless, these rulings have led some to call Kennedy the first gay Justice in the same way that Bill Clinton was the first black President. You might not remember that, but that was a thing back in the 90s. It's an odd appellation for the Genteel Country Club Republican. One who in 1980, when he was on the Ninth Circuit, ruled against three seamen who were discharged from the Navy for homosexual conduct. But it'll stick until someone who's actually openly gay does reach the High Court. Moreover, Lawrence, Windsor, and Obergefell were all announced on June 26th. So Kennedy is responsible for the biggest holiday in the LGBT community. Racial preferences, moving to an area in which Kennedy is in somewhat better alignment with judicial conservatives, on race conscious state action he stays within equal protection doctrine rather than escaping into a nebulous reading of liberty. Now he's no colorblind
Ilya Shapiro: absolutist like Justice Scalia was, but he viewed with great skepticism laws that treat people differently based on race. He acknowledges, for example, that encouraging racial diversity, particularly in higher education, is a legitimate goal. At the same time, he's never voted to uphold the policy that attempts to achieve that goal. So as he wrote in the school busing case, Parents Involved, the government can't force diversity on society by, "reducing an individual to an as assigned racial identity for differential treatment. To be forced to live under a state mandated racial label is inconsistent with the dignity of individuals in our society." But he wrote these things in a concurrence, declining to join the Chief Justice's famous plurality opinion, "the way to stop discrimination based on the basis of race is to stop discriminating on the basis of race." Because it was quote "too dismissive of the legitimate interest
Ilya Shapiro: government has in ensuring all people have equal opportunity." So it went in Kennedy's vehement dissent from a five to four ruling upholding an FCC policy that gave preferential treatment to minority owned broadcasters that the Metro Broadcasting versus FCC case. And a decade later in Rice v. Cayetano, he wrote the opinion against race-based voting for the trustees of the Office of Hawaiian affairs. In the 2003 University of Michigan cases, Grutter and Gratz v. Bollinger, the Court struck down the college's policy of giving admissions points by race, but upheld the Law School's use of race as one of several factors that create a critical mass. And there Justice O'Connor provided the key vote upholding the law school's "individualized holistic review" for at least 25 years. I guess we're 13 years into that sunset. Kennedy expressed frustration that the court didn't apply real scrutiny and that the basic protections against nefarious uses of races would be suspended for an arbitrary length of time, which of course brings us to the Fisher v. UT Austin saga in which an applicant to the University of Texas sued the school for being rejected on her race.
Ilya Shapiro: As you will recall, a couple of years ago when Fisher won, the Court seemed ready to throw out the admissions program and put virtually out of reach the standard that universities have to meet to be able to consider race. This result I think would have aligned perfectly which with what seems to be Kennedy's view of racial preferences: feasible in theory, unconstitutional in practice. But after sitting on that case the entire term, the Court ended up with a meek 14 page opinion by Kennedy and joined by all but Justice Ginsburg and Kagan who was recused. Later we found out through Joan Biskupic reporting that apparently Justice Sotomayor had prepared a vehement dissent from a much stronger majority opinion, which convinced Kennedy and the conservatives to fall back. Eventually she published most, most of that dissent as a dissent in ... where it was completely inept.
Ilya Shapiro: The Fifth Circuit then rubber-stamped its previous opinion and so we go to Fisher II which with Scalia's death presumably is now expected to split four to three against UT Austin. We'll see. I don't know if there's any finer way of slicing that onion. I think we'll see kind of the definitive statement on affirmative action here. All right. Moving onto the Constitution's structural protections for liberty. This is very important in Kennedy's mind. Especially after Windsor, commentators discovered that Kennedy has a vision of federalism that supports individual rights. Surprise, surprise. But federalism existed long before progressives decided that it might be a useful tool in the battle over gay marriage. Separating powers vertically, not just horizontally, is a key part of the founding. As is the principal of dual sovereignty. Kennedy connected these theories in his concurrence in the United States v. Lopez, where the court struck down in federal law criminalizing firearms possessions in our schools because it wasn't a regulation of interstate commerce.
Ilya Shapiro: To quote, "The theory that two governments accord more liberty than one requires for its realization two distinct and discernible lines of political accountability." He explained, "one between the citizens and the federal government, the second between the citizens and the states." And the Court continued its short lived federalism revolution in the United States v. Morrison where Chief Justice Rehnquist's majority opinion picked up on many of Kennedy's points. In between those cases, Kennedy wrote majority opinions that limited Congress's power to create new rights that have to be honored by the states, in City of Boerne v. Flores, and struck down a federal law that strips states of sovereign immunity. And he also joined the two big anti commandeering cases, New York v. US and Printz v. US.
Ilya Shapiro: The clearest exposition of Kennedy's federalism came in United States v. Bond. You'll recall that this is your typical run of the mill case involving adultery, federalism, and chemical weapons. Right? This woman who found out that her erstwhile best friend had been having an affair and had gotten pregnant by her husband. So she took some, did what most of us would do, took some household chemicals and sprinkle them on a mailbox and car door and things like that. There's a minor chemical burn. Um, and was she prosecuted for assault or attempted murder by the, by the DA? No, she was prosecuted by the feds for violating the federal law that implements the International Chemical Weapons Convention and the Court first unanimously said that yes, you can defend yourself with a federalism argument and then eight to one, uh, that, uh, you win, the feds cannot prosecute. "Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity,"
Ilya Shapiro: Kennedy wrote. "It protects the liberty of the individual from arbitrary power." Using the judicial power to stop government abuse was also the theme of Justice Kennedy's magnum opus in this area, which is the joint dissent he authored with Scalia, Thomas, and Alito in NFIB vs Sebelius. He actually read that out loud. He was the one that read the dissent. I was in the courtroom, and you could have sworn it was Scalia. He was so passionate and so disgusted by John Roberts' majority opinion, this joint dissent concludes, "The values that should have determined our course today, our caution, minimalism, and the understanding that the federal government is one of limited powers, but the Court's ruling undermines those values at every turn in the name of restraint, it overreaches, in the name of constitutional avoidance, it creates new constitutional questions, in the name of cooperative federalism, it undermines state sovereignty." This was his finest hour, and really it makes you wonder how the same jurist could have signed onto to Gonzalez v. Raich, which ratified the federal government's power to regulate plants that you grow in your own backyard for your own use.
Ilya Shapiro: Justice Kennedy's most famous judicial act, at least until Obergefell, was his switch from a tentative majority set to overrule Roe v. Wade to joining Justices O'Connor and Souter to coauthor Planned Parenthood v. Casey, which upheld Roe's essential holding. The trio crafted an undue burden test, which invalidates laws if you can get five votes of the Supreme Court. No, the actual standard is the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus. Kennedy has played the key role in applying this test because I guess no one else can really understand it, finding constitutional protection for a woman's right to end her pregnancy, but recognizing that this is a liberty that's bounded by important state interests. Casey challenged five provisions of Pennsylvania's abortion law. Only its three authors joined every part of the ruling that struck down a spousal notification requirement but upheld the other rules. Telling, this was not about privacy.
Ilya Shapiro: Opening instead with, "Liberty finds no refuge in a jurisprudence of doubt" and concluding with similarly lofty language. It's this kind of rhetoric that gets Kennedy in trouble, not just with conservatives who disagree with outcomes, but with originalists, textualists, and others opposed to judicial pontification. In what's become derisively known as the "Sweet Mystery of Life" passage, Kennedy explained, "At the heart of liberty is the right to define one's own concept of existence, of meaning of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the state." Still this grandiloquence was to be checked by certain boundaries. The Court's duty is to, "define the liberty of all, not to mandate our own moral code." Abortion is a "unique act, not one that a woman can make without considering the consequences for others."
Ilya Shapiro: And so Kennedy's bounded liberty rubric was on display in the two partial birth abortion cases, Stenberg v. California and Gonzales v. Carhart. In Gonzalez, Kennedy wrote the opinion for a five justice majority upholding the federal partial birth abortion ban that lacked a maternal health exception after the Court had struck down Nebraska's similar ban. After taking heat from conservatives for Casey, Kennedy now took heart from liberals for seeming to contradict his own Casey opinion as well as for disingenuously reconciling Gonzales versus Sternberg, rather than recognizing that he'd have to overrule Sternberg to achieve his desired result. I think there's some validity to that criticism. And so we're left with an outcome whereby abortion rights are both stronger and narrower than before Kennedy got his hands on them. In this area, he has pleased no one. So is he a libertarian? I mean, what, what does this all mean?
Ilya Shapiro: He was excellent on speech, good but frustrating on race and federal power, bad on statutory interpretation. (We did not discuss that much but we can, if you like.) And ugly on everything else. Justice Kennedy is a sui generis enigma at the heart of the modern Supreme Court. Um, the books I mentioned by Carlucci and Knowles and other shorter writings have helped us better understand the man's sweet mystery by deconstructing his fainthearted libertarianism. But at bottom, his jurisprudence is a constant struggle to balance freedom and responsibility: ordered liberty, if you will. It sounds like something from Spiderman. This balancing of liberty against other concerns can sometimes amount to an imposition of Kennedy's life philosophy rather than either being bound by ancient texts or leaving the decision to the political process. And that approach is decidedly not libertarian. As Jeff Rosen once noted, for example, Kennedy tends to use dignity and equality in a paternalistic way, not to enhance freedom.
Ilya Shapiro: So he may be better described as favoring good government, one with liberty as a positive and welcome externality, but that requires his own workman like beneficence to bring the majestic law to the people. What are we to make of a recent extra judicial development? Kennedy's 2013 release of a reading list for young people, titled "Understanding Freedom's Heritage: how to keep and defend liberty." This list includes the following canonical choices: the funeral oration of Pericles, the Magna Carta, Edmund Burke, the Declaration of Independence, the Gettysburg Address, Churchill's speech after Dunkirk, Kennedy's inaugural address, King's letter from Birmingham jail, and Reagan's speech at the Berlin Wall among others. But it also contains some less obvious, but perhaps appropriate interdisciplinary picks. Marc Antony's funeral oration in Julius Caesar, Zola's J'accuse, Longfellow's "Midnight Ride of Paul Revere," John McCrae's "In Flanders Fields," Charlie Chaplin's closing speech in The Great Dictator, Solzhenitsyn's "One Day in the Life of Ivan Denisovich." But then it veers into selections that seem cribbed from an American studies syllabus, Huckleberry Finn, Lou Gehrig's "Farewell to Baseball," Robert Frost's "The road not taken," John McLean's "American Pie", Michael Creighton's "The Great Train Robbery," and Reese Witherspoon's commencement address in Legally Blonde.
Ilya Shapiro: Now I might like to take that class. I don't know if it's offered across the Midway, but I'm not sure what it has to do with how the commerce clause and 14th amendment secure and protect our liberties. What's really interesting, and might explain a lot about Kennedy's views and why he isn't a libertarian of any recognizable mold, is what's missing: no Hobbes or Locke, no Mill "On Liberty," Hayek, Nozick, no Rawls. These absences make sense from Kennedy's perspective because he seems to view liberty from a different angle than would be expected from a classical liberal or modern libertarian who would focus on the individual, the party whose rights are impacted by illegal government action. Kennedy approaches the issue from the viewpoint of society at large: the perpetrator of the contested law. So his central concern, especially where the constitutional or statutory text is unclear is whether it has a noble or dignified purpose.
Ilya Shapiro: This is why he told lawyers at an ABA conference that they should strive to achieve honorable outcomes. Not justice, not liberty, not legal fidelity, but honorable outcomes. One more example, Kennedy includes on his list another compelling Shakespearian monologue in which Portia tries to persuade her father to be merciful even when the law permits him to take revenge on Antonio in Merchant of Venice. Quote: "The quality of mercy is not strained, it bless him that gives and becomes the throne monarch better than his crown." It's a beautiful speech and an exceptionally humane statement, but you have to wonder why he didn't include it in a reading list to teach how to keep and defend liberty. Reliance on the mercy of those in a position to harm you may be a successful advocacy skill, particularly if pleading for the life of a guilty man who has repented or redeemed himself.
Ilya Shapiro: If Porsche were libertarian, however, it would have been a very different speech. One, arguing that any law permitting a man to literally carve a pound of flesh from another is unjust. But Kennedy, the Burgermeister, has a certain sense of noblesse oblige. Pardon using two foreign languages in the same sense. There's a definite parallel here to Kennedy's gay rights tetralogy. The constant theme in Romer, Lawrence, Windsor and Obergefell is the ignoble motivation behind the laws at issue. The way they denigrate a certain class of people and thus devalue our democracy. That's a Portia approach. The law should be opposed because it represents a character flaw in those who enforce it. And where Kennedy is concerned for the wellbeing of people effected, he's concerned for their dignity, not necessarily their rights. A libertarian can't accept the judicial philosophy which allows oppressive laws to stand if there is a noble purpose. And if you doubt that that's what Kennedy would have done, if he could have found a dignified justification for homophobia, look no further than his silent acquiescence in Raich and his opinion in National Treasury Employees Union v. van Raab in which five justices, over dissents by Scalia and Thurgood Marshall, upheld
Ilya Shapiro: the suspicious drug testing of government employees against Fourth Amendment challenge. The only way to explain these votes is that Kennedy doesn't see any nobility in drugs, so their users merit little constitutional protection even if they don't hurt anybody and are confined to the privacy of the home. This is why those who despair the state of religious liberty post-Obergefell, have nothing to fear from Kennedy. While the one paragraph he devotes to the issue is rather cursory and reads like an afterthought, it mentions advocacy and teaching and not exercise of religion, I highly doubt that this mild mannered Catholic would affirm the persecution of wedding vendors or force social service organizations out of business. Indeed, he sided with Hobby Lobby in that company's fight for exemption from Obamacare's contraceptive mandate, and it will be surprising if he didn't do the same in the religious nonprofit cases that the Supreme Court is hearing
Ilya Shapiro: considering this term. It's clear that Kennedy sees a distinction between public and private action and hopes that both sides in the marriage debate respect each other's liberties and recognize that we live in a pluralistic society. So the perception that Kennedy is a libertarian is purely a function of his role as the linchpin between the Court's progressive and conservative wings. A libertarian position, whether sounding in substantive due process or federalism, is unlikely to prevail at the Court unless Kennedy agrees with him. Thus, anytime there's a libertarian win, he's almost certainly in the majority, and his seniority and the fear that he might defect result in a fair number of those cases being assigned for him to write. Moreover, particularly in the Obama era, aggressive uses of federal power and envelope breaking arguments by the Solicitor General's office have seen increasing pushback at the Supreme Court. But even in as Kennedy is most often on the libertarian side of the result,
Ilya Shapiro: his reasoning is rarely that way. Too many observers are outcome-sensitive and process-blind. While Kennedy is undoubtedly the most libertarian justice of the modern era, that's not saying very much. Now, If the idea of an enlightened magistrate deciding conflicts based on what he thinks his righteous, noble and good sounds uncomfortably familiar, it should come as no surprise that one of the first works that Kennedy included in his reading list is the Allegory of the Cave. There Plato argues that it's the duty of enlightened philosophers who alone among men have knowledge of what's truly good to better the lot of the ignorant out of pity if not anything else. This is the basis for Plato's philosopher kings who ruled based on their love of honor. But rules coming from a jurist's special access to truth, whether empirical or moral, are incompatible with the republican state.
Ilya Shapiro: We are thus inevitably drawn to the question of how faithful Kennedy is to the Constitution and the rule of law, which is a stronger measure of consistent principal jurisprudence. The rule of law comprises values such as predictability and transparency. If a black box makes all the decisions, it's not legitimate, even if the results appeal to a majority. Regardless of how convincing my or anyone's explanation of his jurisprudence might be, if the general perception is that Kennedy decides cases in some inscrutable manner, whether based on policy preferences or some unrecognizable legal theory then he's no better than a black box. Or put another way, he becomes a sort of prophet who tries to convey the will of the founding gods which can only result in a decline in the congregation's faith in the law. Given that Justice Ginsburg is 83 and that Kennedy turns 80 in July, the coming election will likely determine the Supreme Court's future regardless of what happens to Scalia seat. Nevertheless, until someone replaces him, Kennedy will continue to fascinate, frustrate, and decide those cases that swing around him. Thanks.
Daniel Hemel: Thanks very much. I'll admit that the title, "The Sweet Mystery of Anthony Kennedy" remained a sweet mystery to me until today. So I haven't had an opportunity to fully prepare remarks beforehand. I'd seen your piece in the Harvard Journal some time ago, but a lot of Kennedy opinions have changed a lot of law since then. So if ACS were to hold this event, it would also, they probably wouldn't have chosen food quite as well, but it would have also also would've packed the house and we would have talked about Citizens United and Bush v. Gore. And we could have gone on about the inscrutability of Justice Kennedy as well, and there seems to be this overlapping consensus between liberals and conservatives that Justice Kennedy disagrees with both of us, so we can unite in our frustration with Justice Kennedy. Justice Kennedy, because he is the swing justice, manages to anger both sides 50 percent of the time and does unite us, uh, in our, in our dislike for him.
Daniel Hemel: And yet, uh, I think he plays an important role on the Court not just in terms of swinging outcomes, but the Kennedy brief exists because both sides think he's listening to him. Liberals never file a Thomas brief because they don't think that they're going to win Thomas' vote. Conservatives don't file a Ginsburg brief because they don't think that they're going to win Ginsburg's vote. And it's an important thing for the functioning of the judicial system for both sides to think that someone is listening to them and Justice Kennedy serves that function. Now he doesn't have a fully thought through judicial philosophy. Uh, but maybe that's not such a bad thing. Right? So when you've seen justices try to come up with a fully thought through philosophy, Justice Black tried and he wasn't so great at it. The second Justice Harlan had no judicial philosophy and he is a Justice who I think both liberals and conservatives, even if they didn't agree with every opinion of his, agree that he was a great Justice or at least a very good Justice.
Daniel Hemel: Justice Scalia was able to do it right. Justice Scalia was able to come up with an original and originalist judicial philosophy and for the most part, follow it. But not every Justice is or can be a Justice Scalia. Justice Kennedy is a very smart guy. He does not think that he is brilliant. He does not think that he is the Ronald Dworkin, well he's of Ronald Dworkin generation, he does not think he is a Ronald Dworkin. And I think I prefer to have Anthony Kennedy than Ronald Dworkin on the Supreme Court. I'm not sure we need the great philosophers and legal theorists of our generation on the Supreme Court. Justice Scalia was one, but that's quite rare. Now one reason why we might want a Justice to have a coherent philosophy is for rule of law purposes. Right? So we don't think that justices are just deciding on the basis of whim, but I don't think that with Justice Kennedy, we should be concerned about that.
Daniel Hemel: Right? So he's not really a black box. You can predict his free speech opinions; his free speech opinions are more consistent than those of almost all his colleagues. Right? He voted the same way in Austin and in Citizens United. In Williams Yulee v. Florida, it was Chief Justice Roberts who flips over to the liberal side with virtually no justification and Justice Kennedy who holds the line. Right? So he's not. Sometimes he's with the liberals, sometimes he's with the conservatives, but he's not really a Hamlet. He has decided views on most areas of law. With gay rights, he's been quite consistent. And Obergefell, this is really an aside. Obergefell is fun to make fun of, especially when we agree that the outcome was right, but it's actually a fine opinion, right? The Constitution never mentions marriage, but the Supreme Court has recognized the fundamental right to marriage.
Daniel Hemel: So we have to figure it out. Does that right to marriage apply just to opposite sex couples or to same sex couples too? Justice Kennedy then engages in pretty typical legal reasoning going through the reasons why we might have a fundamental right to marriage. It's importance to the individuals; it's importance to couples; it's importance to families. It's important as a social bedrock and he realizes that those reasons apply to same sex unions to the same extent that they apply to opposite sex unions. So when we're speaking of a fundamental right to marriage, there's no reason to distinguish between same sex unions and opposite sex unions. That's pretty standard legal reasoning. Now, there is a very clever argument that the ban on same sex marriage is just sex discrimination, right? John can marry Mary; Sue can't marry Mary. So Sue is being discriminated against when Kentucky denies Sue and Mary a marriage license.
Daniel Hemel: Uh, that's fine. I like that argument too. It does not speak to Sue's experience of being denied the right to marry Mary. I should have picked another name, but the point is if Justice Kennedy had written that up. But Justice Kennedy had written that opinion, it would have pleased these law professors and it would have befuddled the country. It's important that Obergefell actually spoke to the values that... to the experience of gays and lesbians in being discriminated against and spoke to the importance of marriage as a social institution. It's spoken terms recognizable, not just a law professors but also to ordinary Americans. Okay. Um, so, uh, it is probably true that we live in Justice Kennedy's world, but Justice Kennedy's world is not all that different from the median American voters' world. Justice Kennedy is the figure on the national scene who is closest to the median, and there are, and the issues on which we might accuse him of inconsistency: abortion, affirmative action, the death penalty, religious liberty are the issues that most Americans struggle with, right?
Daniel Hemel: So, in non fed soc settings, we liberals admit that abortion is a really hard issue even for our side. And I think we saw over the course of the last few weeks, conservatives admit that abortion is a really hard issue for their side too, and they're not willing to criminalize it. Um, with affirmative action, Chief Justice Roberts tells us to be race blind, but we all know that we're not colorblind. And Justice Kennedy is willing to admit that. We see him grappling with these issues in the open and very transparently not in a black box, right on the death penalty. Most of us, when we think of the most heinous crimes, we want that person to be executed. And yet we don't want children to be executed. And we see Justice Kennedy in his jurisprudence grappling with these questions. So we might say that rather than living in Justice Kennedy's world, Justice Kennedy is a vestige of a bygone era in which there actually was a center and we actually grappled with these questions in the open, transparently and admitted ambiguity.
Daniel Hemel: And while we admitted ambiguity, we also had shared values. His reading list actually reflects that. It reflects a time when we could admit that Ronald Reagan's speech to the Berlin Wall was a pretty good speech and so as JFK first inaugural address, right? We all read the same books and we all watched Legally Blonde and that world, that world of the 1980s and 90s, early 1990s when we actually participated in a national conversation and tried to hash out these issues. We weren't all philosophers, but we were pretty smart and engaged with opposing views. That is Justice Kennedy's world. And unfortunately we might not live in Justice Kennedy's world for that much longer. And when we don't, I think we'll miss him a lot.
Ilya Shapiro: Oh so I guess it's time to make America great again. Questions?
Question One: Could you characterize Justice Kennedy as sort of a conservative common law constitutionalist? Like David Strauss if your principals were more conservative?
Ilya Shapiro: That implies that he's purely based on precedential reasoning. I'm not sure that's the case. I think he does see cases as one off and he tries to be consistent in his thinking, but it's not. I don't think he's engaging in common law. So no.
Daniel Hemel: It's certainly true that he cares about precedent less in Constitutional cases, right? Uh, then moderate justices typically have. Less than a, less than the second Justice Harland did, and it was not a deep problem for him in writing Citizens United that Austin had come out the other way. He was willing to overrule.
Question Two: So there are a lot of assumption that go into this, but if Judge Garland would be... How would that change...?
Ilya Shapiro: Depends on the type of case. So government agencies would always win without, regardless of what Kennedy does. It would be much tougher for criminal defendants. Kennedy's not really a swing vote on criminal defendants. Criminal defense cases tend to be the left and the right against the middle.
Ilya Shapiro: So he would be with Garland on those probably. Um, that's a very interesting thought experiment. You know, he'd be the swing vote in fewer cases. Garland I guess would be the, the true swing vote. But again, it's certain issues not, um, I think people would still write for Kennedy because there would be cases, I mean the, the, you know, the current four democratically appointed justice are essentially a block. I'm not sure how much of a block, how much Garland with join that block. He would on the important cases because there's no difference between a so called moderate and a progressive on the Left in the big cultural war cases, but around the margins, I think it would sort of revert to an O'Connor-Kennedy where they're both swing votes situation.
Daniel Hemel: It's important on a criminal justice issues. Scalia, it was Scalia plus three often, right? It was, it was Scalia plus Ginsburg, Kagan, and Sotomayor. And Breyer.
Ilya Shapiro: Then with Thomas to make a fifth.
Daniel Hemel: Thomas or in Rodriguez v. United States, last term, it was Roberts who came over and joined those four. And on sentencing, Breyer has been also on sentencing. It's been Thomas rather than Breyer. So it can be, will never be the swing there because there he is the least pro-criminal defendant.
Question Three: So if you view Obergefell as actually a very conservative opinion because it doesn't introduce LGBT rights as any under any sort of scrutiny. Do you think that it would have wound up differently if you were looking at a six-three opinion and for instance Roberts had joined as well? Or do you think that his opinion was always going to be law light?
Ilya Shapiro: His opinion was always going to be his opinion. I mean, I don't think he was couching his opinion in any way to get the the fifth: he was the fifth vote. If Roberts had joined for some reason to make a six-three, Roberts would have probably been concurrent special in some way rather than Kennedy.
Ilya Shapiro: I mean, it's a, it's a pretty typical Kennedy opinion at least in in gay rights and certainly in a lot of these controversial issues and to point out just two more problems with why it's doesn't actually read like normal law even in the ways that you mentioned. If you really drill down on the logic of how he describes marriage being a fundamental right, which I think there is something new there and beyond previous marriage cases. Effectively he's saying that it's not even that it's a fundamental right, he's effectively saying it's a natural right: that in the state of nature we all have the right to get a piece of paper from the sovereign, which doesn't... It's kind of doesn't make... it breaks down there. And also all of you who are not married yet, you are not fully actualized and do not merit the full measure of human dignity yet. So get cracking with the getting married, that's the full measure.
Daniel Hemel: Two points on Obergefell, actually three points about that. The Supreme Court precedent was not fully thought through on marriage, right? We have cases like Loving and Griswold and not talking about marriage, but talking about the family, going back to the early 20th century. Uh, so we had this notion of a link between fundamental rights and family institutions, but hadn't fully thought it through. And he hasn't fully thought it through. I think that Justice Kennedy actually probably believes that until ... his, his marriage is so important to his life that he probably doesn't believe that you can fully flourish as a person without being married. Um, and, and a lot of Americans share that view, but, um, third, there is so...
Ilya Shapiro: If my wife is ever watching this, honey, I agree.
Daniel Hemel: In the states that were, uh, the subjects in Obergefell.
Daniel Hemel: It wasn't just that the state wouldn't provide a marriage license, right? It was actually illegal to conduct a same sex marriage. Right? There was, there were laws against solemnizing an unlicensed union and you could not get a license in Kentucky or Ohio without, uh, without being an opposite sex couple. So in that sense, actually...
Ilya Shapiro: Just like any other business license and case. It really should not have engendered this kind of controversy. Petty forms and bureaucrats...
Daniel Hemel: But it, but it's true that in the state of nature, yeah, you, you can get married as a same sex couple, right? And in Kentucky, in the State of Kentucky, you could not before June 26, 2015. Um, so in that sense, there isn't bringing this out in the opinion.
Ilya Shapiro: But what he's what he's saying is states cannot get out of the marriage business, which wouldn't be my preferred policy solution.
Daniel Hemel: Uh, that is your preferred policy solution. That's probably not the preferred policy solution of A. I mean, it's not just, not Justice Kennedy's preferred policy solution. He is reflecting a national consensus that marriage is something that the state should do.
Ilya Shapiro: I don't care what the state does, I want to be recognized by my community or my civil society, my church, my covent whoever wants to recognize me.
Daniel Hemel: And there are, there are lots of...
Ilya Shapiro: Historically, that's important, you know, state recognition of marriage is a novel phenomenon in human existence.
Daniel Hemel: There are lots of problems... there are lots of problems with the argument, but it is not Kennedy imposing an idiosyncratic preference. It's him, I think, reflecting actually an emerging national consensus.
Ilya Shapiro: He is constitutionalizing and, and... Well anyway. Yeah?
Question Four: It appears that going forward there's going to be three open seats to be filled shortly, so I'm just curious who would you nominate?
Ilya Shapiro: Well, I mean, who knows, you know, Ginsburg's been called frail since she was 50 years old, and she survived cancer. She's going to live to 150. She'll keep shrinking. We're going to have like Alice in Wonderland. Um, let's see. Don Willett, the Supreme Court of Texas. Clint Bolin the Supreme Court for Arizona. Diane Sykes, the Seventh Circuit. I mean, if we don't care about age then I could list lots of other people like Janice Rodgers Brown. You know, if Democrats want a black female, there you go. In the DC Circuit, same age as Merrick Garland. Alex Kosinsky for that matter, but too old. Um, who else? Mike Lee, and I'm wondering if I want to look some more at other state Supreme Courts. Or state lower courts for that matter or other kind of... think more broadly than simply surrogate judges. Um, but that's, you know, I've given you a half a dozen.
Daniel Hemel: I would have a completely different list. But I guess I would, uh, well I would nominate David Strauss of course, but if... or I would ask Kennedy to re-op, right? Uh, you know, uh, give us another, another 25 years on the court, but almost every name that you said there I was someone where I thought, wow, I will disagree with every decision, every contract, every decision in a controversial case.
Ilya Shapiro: Not necessarily. A lot of my folks are much more libertarian than conservative.
Daniel Hemel: That's... fair. But whoever... whoever replaces...
Ilya Shapiro: I just like Lochner, that's my, that's my, what do you think of Lochner? If you don't like it then, sorry.
Daniel Hemel: But it is, it is instructive that there are very few, uh, figures who we could imagine being nominated who are as close to the American median or even the median among lawyers, uh, uh, as Justice Kennedy is, right? Kavanaugh maybe? Harvey Wilkinson would, would be a possibility. Michael... when he was still active, I think would've been, would've been close to the median. Um, but they just don't make them like Justice Kennedy anymore.
Question Five: Ilya, because we're friendly, I'll do what I often do and ask a bunch of more direct questions. So I thought Windsor was an absolute joke, and I decided, and I think it's an even bigger joke today. So to the extent that the opinion revolved at all around the ostensible cloaking of federalist principles, given that Obergefell happen but two years later, how willfully disingenuous do you think that was?
Ilya Shapiro: Well, Windsor again was, was poorly reasons because it has something to do with, with federalism and equal protection. But it wasn't the federal government that was trying to define marriage. I mean, that seems again to me a very easy case. States define marriage. Federal government should recognize those marriages, period. Um, and Kennedy made it more complicated than he should have. Um, you know, Perry, the kicking Perry on standing grounds with disingenuous, generally the chief and Ginsberg for that matter. Who joined them, right? That was a heterodox coalition to kick the California Prop 8 case. Uh, they decided that the country wasn't quite ready, but two years later I guess they couldn't avoid it given... So, uh, so that went. But Kennedy was ready to decide, Perry, even then, so we could have had probably the same opinion two years earlier.
Question Six: Do you think that Justice Kennedy's jurisprudence shifted at all when there was two swing votes, O'Connor and Kennedy, to him being the only swing vote?
Ilya Shapiro: I don't think so. Um, I don't think you, if you look at any of those areas of law that I've gone through, I don't think there's, oh, he's involved or has become more or less rigorous or oh, now he's writing for the times nd before you just being a judge. No. I really don't. He started becoming more in the majority; he dissented a fair bit from O'Connor and O'Connor dissented from him as well on different cases like Hilo, for example. I guess he got to write enough even with her on the bench now he gets, he gets to write even more of those big cases. So the short answer without having kind of rigorously looked at it, my impression is kind of thinking through it now is no, but that's, that's an interesting question. Do you have any sense?
Daniel Hemel: Yeah, I can't, I can't think of. And I mean, I guess, uh, maybe he's moved a little bit to the left. Texas Housing would have been a surprise in...
Ilya Shapiro: I don't what, what happened there? Want to have it all ways. Kind of like an instant opinion is like, alright, plaintiff's lawyers, you should argue this, defense lawyers, you should argue this. And then we got a stalemate or something, I don't know.
Daniel Hemel: But, but with the exception of Scalia and maybe Bob Katzmann there are very few judges with fully thought through views about statutory interpretation and Kennedy's no better than the lot.
Ilya Shapiro: I've heard, I guess this might be second or even third hand anecdote of how sometime he was wrestling with this statutory interpretation question. He threw open his window, which is overlooking the Capitol and yelled out the window, "What did you mean?"
Daniel Hemel: That is the direction his window looks.
Ilya Shapiro: That's confirmation for one part of that anecdote.
Host: All right. Well thank you so much!
Announcer: This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.