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Wednesday, June 27, 2018
(SCOTUS Term): Justice Kennedy is not a centrist (Several Updates)
For personal and political reasons, I hope Justice Kennedy does not retire. I care deeply about reproductive freedom and a Trump-appointed/Fed Soc-approved replacement would be a fifth vote to eliminate constitutional protections for reproductive freedom as early as fall 2019.
But this rests on a fundamental misconception: Justice Kennedy is not a centrist and never has been. He is a conservative (although not an Originalist) who follows the conservative judicial line on virtually everything. And this did not begin with the rise of Donald Trump. Kennedy has followed the conservative judicial on just about everything except reproductive rights (and not always) and free speech (which is increasingly becoming a conservative preference), [Update: I forgot LGBTQ rights, of course--although I would bet against Kennedy concluding that sexual-orientation discrimination is sex discrimination under Title VII]. And there are the stray votes to uphold race-based affirmative action in education or in the military-commission cases [Update: And some death-penalty stuff]. Otherwise, he has repeatedly been in the five-Justice conservative majority on most issues--expanding state sovereign immunity, narrowing congressional legislative power, expanding qualified immunity, narrowing Bivens, narrowing habeas, narrowing standing, allowing expanded government support for religion, expanding state power to limit voting. We could go on. And his almost-certain vote in Janus should not be surprising, as Kennedy has been consistent in his dislike for Abood.
It is not that his vote is not in play anymore. It is that this Term's cases did not present the rare issues on which he departs the conservative position.
Update: Dahlia changed her mind following Kennedy's announcement, beginning the piece with:
It was always more fan fiction than reality that Justice Anthony Kennedy was a moderate centrist. Democrats liked to soothe themselves with the story that Kennedy was a moderate because he’d provided the fifth vote to support continued affirmative action, reproductive rights, and gay rights and had strung the left along with the tantalizing promise of someday finding an unconstitutional political gerrymander. But we always knew that Kennedy was a conservative, indeed a very conservative conservative.
That was a quick reversal. But I obviously agree with where she landed.
Second Update: Eric Citron at SCOTUSBlog identifies five areas, covering 11 cases, in which Kennedy's conclusions or approaches departed from the rest of the conservative Justices.
Posted by Howard Wasserman on June 27, 2018 at 08:56 AM in 2018 End of Term, Constitutional thoughts, Howard Wasserman | Permalink
Comments
"Also keep in mind that Kennedy's "left" positions on issues like affirmative action and gay rights are not all that left."
Some might describe those positions as centrist, in fact.
Posted by: jph12 | Jun 28, 2018 11:33:50 AM
I generally agree with Howard. I don't think the number of times that Kennedy voted with each group (538 runs similar numbers in a recent post) tells us a whole lot. Case selection and the leanings of the other Justices are important factors that can skew the numbers.
Disagreeing with someone like Thomas doesn't exactly make you a moderate, let alone a centrist. Also keep in mind that Kennedy's "left" positions on issues like affirmative action and gay rights are not all that left. Kennedy was with the conservatives on Parents Involved, which I think is much more significant than Fisher. And, no one I know on the left is very happy with the incoherence of Obergefell, which seems to have intentionally been written so as not to broadly extended protections based on sexual orientation.
Posted by: Jeff Schmitt | Jun 28, 2018 10:57:23 AM
"My point was substantive, not numerical"
The point you might have been trying to make might well have been non-numerical. But what you actually wrote most assuredly was not. Saying that Kennedy "follows the conservative judicial line on virtually everything" and that "he has repeatedly been in the five-Justice conservative majority on most issues" and that he only departs from the conservatives "rare issues" are statements that are staking out a position about the numbers.
Posted by: Curmudgeonly Ex-Clerk | Jun 28, 2018 10:43:56 AM
"But you think you have a representative sample?"
I explicitly said: "Any snapshot might be misleading, and trends might change over time."
What I have is more empirical data than you, Wasserman, or anyone else in this thread. Lots of folks like to pretend to expertise based on casual, term-to-term observation of the Court.
If you've got more or better data, let's see it.
Posted by: Curmudgeonly Ex-Clerk | Jun 28, 2018 10:38:30 AM
"fundamental misconception"
Kennedy clearly voted differently than his conservative colleagues in a number of areas. Whether these areas are important enough to justify calling him a centrist is a matter of taste, not something you can have a fundamental misconception about.
Posted by: Jr | Jun 28, 2018 7:23:17 AM
My point was substantive, not numerical--it's not the number of cases, but the number of issues. In the post, I said that there were areas in which Kennedy joined the liberals--LGBTQ rights, abortion, and free speech, as well as stray votes on other issues--some affirmative action, some death-penalty, and I guess I would add extreme instances of race discrimination or abuse of criminal procedure. Those substantive areas are represented in your list of cases. I then identified a bunch of substantive areas from over his 30 years in which he was consistently in the conservative wing of the Court. And there are a lot more of those areas than the other and a whole lot more cases in those areas.
Take, for example, congressional power to abrogate sovereign immunity. He wrote the horror show that is City of Boerne (which was not a 5-4 divide), then voted in every subsequent case (there were at least 8 or 9) against congressional power to abrogate (in the one case that allowed abrogation, Tennessee v. Lane, O'Connor switched and Kennedy remained in dissent).
Posted by: Howard Wasserman | Jun 28, 2018 12:17:52 AM
"I have looked at 5-4 or equivalent decisions from 2015 to present"
So he's been on the court for 30 years, and you looked at 10% of that time. You didn't look at any of the cases where he worked with Justices Brennan, White, Marshall, Blackman, Rehnquist, Stevens, O'Connor, or Souter.
But you think you have a representative sample?
Posted by: I like my races mixed, not shaken | Jun 27, 2018 7:01:35 PM
To put some meat on the bones of my complaint, I have looked at 5-4 or equivalent decisions from 2015 to present that broke down along conservative/liberal lines, and here is what I found for Kennedy:
5-4 cases or equivalent in which Kennedy authored and voted with the conservative bloc:
1. Jesner v. Arab Bank, 138 S. Ct. 1386 (2018) (5-4)
2. CalPERS c. ANZ Secs., 137 S. Ct. 2042 (2017) (5-4)
5-4 cases or equivalent in which Kennedy joined the conservative bloc:
3. Janus v. Am. Fed. of State, Cty. & Munic. Employees, 2018 WL 3129785 (2018) (5-4)
4. Trump v. Hawaii, 2018 WL 3116337 (2018) (5-4)
5. Nat’l Inst. of Family & Life Advocates v. Becerra, 2018 WL 3116336 (2018) (5-4)
6. Abbott v. Perez, 2018 WL 3096311 (2018) (5-4)
7. Ohio v. Am. Exp. Co., 2018 WL 3096305 (2018) (5-4)
8. Currier v. Virginia, 2018 WL 3073763 (2018) (5-4)
9. Wisconsin Cen. Ltd. v. United States, 2018 WL 3058014 (2018) (5-4)
10. Husted v. Philip Randolph Inst., 138 S. Ct. 1833 (2018) (5-4)
11. Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018) (5-4)
12. SAS Inst. v. Iancu, 138 S. Ct. 1348 (2018) (5-4)
13. Encino Motorcars v. Navarro, 138 S. Ct. 1134 (2018) (5-4)
14. Murphy v. Smith, 138 S. Ct. 784 (2018) (5-4)
15. Davila v. Davis, 137 S. Ct. 2058 (2018) (5-4)
16. RJR Nabisco v. European Cmty., 136 S. Ct. 2090 (2016) (4-3*)
* Ginsberg, Breyer, Kagan dissenting; Scalia deceased; Sotomayor not voting
17. Glossip v. Gross, 135 S. Ct. 2726 (2015) (5-4)
18. Michigan v. Envt’l Prot. Agency, 135 S. Ct. 2699 (2015) (5-4)
19. Horne v. Dep’t of Agriculture, 135 S. Ct. 2419 (2015) (5-4)
20. Davis v. Ayala, 135 S. Ct. 2187 (2015) (5-4)
21. Kerry v. Din, 135 S. Ct. 2128 (2015) (5-4)
5-4 cases or equivalent in which Kennedy authored and voted with the liberal bloc:
1. Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017) (5-3*)
* Roberts, Thomas, Alito dissenting; Scalia deceased and Gorsuch not yet confirmed
2. Fisher v. Univ. of Texas, 136 S. Ct. 2198 (2016) (4-3*)
* Kagan not voting; Scalia deceased and Gorsuch not yet confirmed
3. Williams v. Pennsylvania, 136 S. Ct. 1899 (2016) (5-3*)
* Roberts, Thomas, Alito dissenting; Scalia deceased and Gorsuch not yet confirmed
4. Obergfell v. Hodges, 135 S. Ct. 2584 (2015) (5-4)
5. Texas Dept of Hous. & Cmty. Affairs v. Inclusive Communities Project, 135 S. Ct. 2507 (2015) (5-4)
5-4 cases or equivalent in which Kennedy joined the liberal bloc:
6. McWilliams v. Dunn, 137 S. Ct. 1790 (2017) (5-4)
7. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (5-3*)
* Roberts, Thomas, Alito dissenting; Scalia deceased and Gorsuch not yet confirmed
8. City of L.A. v. Patel, 135 S. Ct. 2443 (2015) (5-4)
9. Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015) (5-4)
10. Brumfield v. Cain, 135 S. Ct. 2269 (2015) (5-4)
11. United States v. Wong, 135 S. Ct. 1625 (2015) (5-4)
12. Alabama Legislative Blacks Caucus v. Alabama, 135 S. Ct. 1257 (2015) (5-4)
13. Kansas v. Nebraska, 135 S. Ct. 1042 (2015) (5-4)
I’ve done this research quickly (and my searches are fallible), so if you think decisions are missing, let me know. Any snapshot might be misleading, and trends might change over time. But 2015 through present shows Kennedy voting with the conservatives roughly 61% of the time and with the liberals roughly 38% of the time when the court is entirely divided along traditional conservative/liberal lines.
That’s not consistent with your claim that he "follows the conservative judicial line on virtually everything."
Posted by: Curmudgeonly Ex-Clerk | Jun 27, 2018 3:34:03 PM
You are making what amounts to a mathematical claim without doing the math. To justify your contention, we need to know:
1. How many 5-4 decisions are handed down per term that break down along conventional conservative bloc versus liberal bloc lines. (It won't do to include idiosyncratic or atypical line-ups in our tally if we are trying to measure "centrism.")
2. Then identify where Kennedy was in those specific cases.
Show your work.
Posted by: Curmudgeonly Ex-Clerk | Jun 27, 2018 1:34:28 PM
Except for the specific areas I identified.
Posted by: Howard Wasserman | Jun 27, 2018 1:32:05 PM
You're representation is that Kennedy "follows the conservative judicial line on virtually everything." That is simply incorrect.
Posted by: Curmudgeonyl Ex-Clerk | Jun 27, 2018 1:29:07 PM
Not sure how that undercuts my point, which was that what separates him from the other four conservative Justices is LGBTQ and abortion rights, plus the odd decision such as Hamdan. Perhaps can add application of death penalty as the other stray area (although not where it comes to manner of execution or race). Less than 2 decisions per term does not a centrist make.
Posted by: Howard Wasserman | Jun 27, 2018 12:16:40 PM
The following chart undercuts Wasserman's post, I think:
Quibble over labels as much as you want, one of these things is not at all like the others.
Posted by: Curmudgeonly Ex-Clerk | Jun 27, 2018 12:10:18 PM
People didn't want to believe that pro-abortion conservative was a thing, so they called him a centrist. People can't understand that people can hold any combination of views, even if you think they are completely incompatible.
People thought Justice Frankfurter's combination of incorporating the first amendment and not incorporating the fourth and fifth amendment was schizophrenic too. But then after others wanted to incorporate the fourth and fifth, but not the second, we learned that it isn't all-or-none.
Posted by: Radical Centrists | Jun 27, 2018 11:12:12 AM
"Kennedy has followed the conservative judicial [_____] on just about everything except reproductive rights (and not always) and free speech (which is increasingly becoming a conservative preference), plus the stray vote to uphold race-based affirmative action in education or in the military-commission cases."
Are you grouping same-sex marriage and same-sex relations under reproductive rights, or in the miscellaneous stray vote category? What about executing juveniles, child rapists, and the mentally disabled? Or the non-nonjusticiability of partisan gerrymandering?
Posted by: Asher Steinberg | Jun 27, 2018 10:48:58 AM
Yes. I too have always been bemused when the press portrays Kennedy as a "centrist" or even more hilarious "liberal-leaning". He may be a centrist on one or two issues but that is it.
FWIW I also think that Breyer liberalism is also overstated. He tends to be all over the map, though I do concede on high profile issue he tends to vote with the liberals.
The underlying problem is that judicial philosophy does not always dovetail neatly with partisan politics. Sometimes it does, sometimes not.
Posted by: James | Jun 27, 2018 10:22:00 AM
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