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Friday, June 15, 2007

About Justice Kennedy

Wow. Just wow. That’s all I can say about Jeffrey Rosen’s essay in The New Republic characterizing Justice Kennedy. Registration is required (though free), but here is a choice passage:

Kennedy does indeed agonize before reaching his decisions, and he has dramatically switched his vote in high-profile cases. Yet he seems to agonize not because he is genuinely ambivalent or humble but because he thinks that agonizing is something a great judge should do, to show that he takes seriously the awesome magnitude of his task.

Then there’s this:

Indeed, Kennedy has often cast himself in [former Chief Justice Earl] Warren's image, treating the Court as an engine for moral change that could save politics from its most partisan tendencies. Like Warren, Kennedy frequently decides cases based on his instincts about fairness and justice, rather than rigorous legal analysis. The difference is that Warren was a masterful politician who enjoyed interacting with people. Kennedy, by contrast, prefers romantic generalizations about "real people" to actually listening to them.

I don’t know Professor Rosen at all, nor do I follow his work closely enough to know where his sympathies lie generally. I remember seeing him a few times on television before I stopped watching three years ago. Maybe there is a fascinating backstory to this piece that everyone else already knows and someone can share with me in the comments. Until then, all I can say is wow.

Posted by Kristin Hickman on June 15, 2007 at 10:08 AM | Permalink


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All your cringing for Justice Kennedy makes me wonder how you could possibly have survived the last 6.5 years of the Bush Presidency! Hardly a day goes by without some major figure in the press calling President Bush a mass murdering, amoral, subhuman, venal cretinous POS. Your empathy for him must yield a constant stream of tears, no?

Posted by: Mike | Jun 21, 2007 12:47:09 AM

This seemed like heavy criticism of Kennedy to me, until I realized that it pales in comparison to (1) the much harsher commentary on Scalia and Thomas, and (2) the much much harsher commentary on virtually every prominent elected official. Arguably we usually get too little critical commentary on Sup Ct justices: they're in for life, so we need more, not less, "fourth estate" journalistic critique of them. Sure, the law reviews have a lot of commentary, but little of that reaches a broader public. I think it'd be good if tehre were more, not fewer, pieces like Rosen's about the Justices.

Posted by: Scott Moss | Jun 20, 2007 12:16:40 PM

Eh Nonymous, The exclusion cases referenced are apples and oranges, so that is not a valid reason to call Scalia an unprincipled hypocrit. The college did not have to allow military recruiters on campus, but then the taxpayers did not have to fund the college in exchange. Since the college has no right to the funding, congress can place any caveat to the funding, strings attached, including that they allow military recruiters on campus. Even the usual activist/subversive judges could understand that logic at least. That's why it was a unanimous decision. The boyscout case did not involve congressional funding, but just the first amend free speech right to include persons within your organization that have the same philosophy, which organization is constructed on that basic, important, philosophy. Otherwise, a gov't policy could force the naacp to include kkk as part of its membership, to show another example. Obviously, when it is business, the commerce does not require these viewpoints, and so can restrict businesses from making the same distinctions.

Posted by: litigator | Jun 18, 2007 3:23:35 PM

I always found it interesting when people accused (and perhaps still accuse; see comment at 3:40 p.m.) O'Connor of being mobile, when it is in fact O'Connor who was consistent in a few things:

- women are humans, and decisions to the contrary won't stand
- litigants are humans, and deserve to have their own case decided on the basis of the merits, rather than based on a justice's biases and political preferences
- Justice is more important than a justice. Therefore, right results are sometimes at variance from a judge's previously stated belief

Whereas Scalia, if you pick a given few of his "bedrock" assumptions, is what we in the field call a sellout.

Scalia voted in favor of equal protection in Bush v. Gore ("why can't you let it go?" he whines - well, perhaps because he keeps pretending he's a principled and long-suffering originalist, see his vote in the flag-burning case, blah blah blah), he would vote in favor of the right to associate only with those you choose in a boy scout gay exclusion case but not a law school military equal-treatment (my characterization) case. Scalia's the least principled hypocrite on the Court, not because others don't take positions and then abandon them, but because he

- continues to assert that he has taken a principled position and will not abandon it
- regularly abandons his stated principles in favor of other rules, such as "death penalty convicts lose," and "gays lose when claiming that the government has no right to regulate," and "those accused of terrorism lose" and so forth
- continues to batter his colleagues with accusations of failure to be as rigid and upstanding as he himself is.

Kennedy? He's enjoying this. And he apparently has not met very many women, or if he has met them failed to notice that they were not living in the 19th century, see the abortion decision he just penned.

Posted by: Eh Nonymous | Jun 18, 2007 6:07:10 AM

It's deliciously ironic that Rosen criticizes Kennedy for desiring "to short-circuit all our most important national debates through his jurisprudence" in an article prompted mainly by hostility to Carhart. In that case, it was the dissenters who wanted to keep an "important national debate[]" out of the legislative process, and the court that refused to "short-circuit" that process. If the court had mandated a ban on partial-birth abortion, Rosen's comment might have some bite, but since they merely permitted its regulation, that case doesn't just not help him, it actively cuts against his theory.

Even setting aside the inaptness of the criticism to this case, more broadly I'd suggest that the desire to short-circuit the democratic process using the courts has been the hallmark of legal liberalism for more than half a century, a tendancy of which Roe is merely the most egregious and high-profile example. Thus, it's hard to avoid the conclusion that Rosen's real beef here isn't that Justice Kennedy has an expansive vision of the role of courts, but rather, that Rosen simply doesn't like the ends to which Kennedy would use the weapons that liberals forged in an earlier era.

Posted by: Simon | Jun 17, 2007 4:43:35 PM

Prof. Rosen is saying about Kennedy (and it would apply equally to O'Connor)that it is easy to be a "swing" vote if you have no anchor.

Posted by: Mike | Jun 17, 2007 3:40:00 PM

Why is it so hard to believe that there is a pompous, bufoonish windbag on the Supreme Court? Throughout history a substantial minority of the Justices have been bigots, bullies, and incompetents. Do we think the modern confirmation process is so perfect as to only give us icons of virtue?

Posted by: Give me anonymity or give me death | Jun 16, 2007 6:04:48 AM

Kristin - you ought to see some of the things he's said about Justice Scalia. Most recently, Rosen got a little carried away to be on "The Daily Show." He doesn't hide his biases well (which may not be a bad thing, in all).

Posted by: Simon | Jun 15, 2007 9:44:21 PM

So I am really fascinated that the point of interest on this post is my use of the word "wow" rather than the substance of Rosen's essay. But I suppose that I put it out there, so I will try to articulate my mess of thoughts further.

I find the nuances of Rosen's analysis fascinating. I have heard/read similar complaints about Justice Kennedy before, but more reflexively and without Rosen's depth of detail. I know there is a high level of vitriolic snarkiness on the web, but I guess I am a little incredulous at the tone of the piece, given both the author and the publication. And Rosen’s essay makes me sad for several reasons. Supreme Court Justices are human beings, human beings are flawed, and I prefer to think of the Justices as hard working public servants doing their best to resolve difficult cases, even when I disagree with the results or the analysis that goes into them. I am sad that our discourse about Supreme Court decision making has descended to the level of personal attack. While I would not characterize myself as a particular defender of Justice Kennedy, I am sad that a man who has dedicated decades of his life to public service should have to endure reading such things about himself, though perhaps he does not actually read them. At the same time, people in high places are often arrogant, and I suspect that Rosen’s characterization of Justice Kennedy contains more than a grain of truth. Indeed, Justice Kennedy is probably not the only member of the Supreme Court susceptible to being labeled as arrogant. I am sad that our Supreme Court Justices are not the perfect exemplars of humility, brilliance, and wisdom that we would like for them to be, although I am not all that sure we would like them very much either if they were. Finally, I am a little sad that I find Rosen’s piece as fun to read as I do, and what that might say about me.

Posted by: Kristin Hickman | Jun 15, 2007 6:39:54 PM

as in "wow, i am fascinated that someone would write something like that, it's hard to believe; I really feel sorry for Jeffrey Rosen," or as in "wow, this is fascinating, Justice Kennedy is so hard to fathom; boy do I feel sorry for him."

that would really clarify things for me.

Posted by: eli | Jun 15, 2007 5:34:51 PM

Neither good nor bad, precisely. It's one of those reactions that is hard to put into words. More wow in terms of a combination of fascination and incredulity, with a tinge of sorrow.

Posted by: Kristin Hickman | Jun 15, 2007 2:14:55 PM

I don't get it. Good wow or bad wow?

Posted by: Kay | Jun 15, 2007 11:11:58 AM

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