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Sunday, September 03, 2023

Isn't a Swing Vote's "Legacy" Bound to Be Evanescent?

This Washington Post story argues that former Justice Anthony Kennedy’s "mark is fading fast — and is already erased in some areas." It draws heavily on his former clerks--and focuses on the fact that part of the reason for the decline of his "legacy" is two particular former clerks, who are now Justices Kavanaugh and Gorsuch.

Is this true? Much depends on which cases one focuses on, and the story focuses mostly on politically salient cases, with a tilt toward culture-war issues--specifically, those cases in which Kennedy's swing vote favored the "liberal" side of the argument. (Thus, the story makes no direct mention of Gonzales v. Carhart, Boy Scouts of America v. Dale, and United States v. Lopez, among other 5-4 decisions, and mentions Citizens United only in passing.) To the extent that it is, I think there are some big reasons and a few smaller ones.

One big one is generational change. The story notes that the current justices who clerked on the Supreme Court don't precisely match the politics of their former bosses: they remain "liberal" and "conservative" but necessarily the same stripe of liberalism or conservatism. That's natural, because the content of "liberal" and "conservative" politics shifts. It may be enhanced by an acceleration or accretion in the politics of liberal and conservative judicial nominations and service as well, according to this forthcoming book, which I look forward to reading, in which interest groups have helped create a Supreme Court appointments model that has "gradually transformed how the Court itself operates, turning it into an ideologically driven and polarized branch." The shift is further enhanced by enormous changes in a short period of time in what constitutes "conservative" thought, which is in flux following the collapse of the libertarian/values-conservative fusion that prevailed for a span of decades. It's not surprising that amidst this flux, the competitors to claim the conservative mantle don't look at all like Kennedy.

Another big reason, obviously, is the change to a 6-3 conservative Court. Had it been a 6-3 liberal Court, perhaps even one staffed by a couple of liberal former Kennedy clerks, I doubt his "legacy" would have held up any better, although the shift might have been in other cases--say, swing cases involving federalism. But even in culture-war issues like the ones discussed in the story, I doubt such a Court would have honored the compromises struck by Kennedy. Why would it need to bother? Remember Mark Tushnet's impolitic words about Justice Kennedy, which were prophetic about everything but which side would be in a position to relegate him to the past. The same thing would have happened had things gone differently; the only difference is that a different, non-"mainstream" paper would have run that story. And another, smaller reason is, with all due respect, his writing. Over and apart from the fact that the current conservative majority's methodology is arguably different from Kennedy's, many of his most famous opinions across a range of areas contain more middlebrow poetry than they do clarity. Holmes's aphorisms lasted, although that had as much to do with his friends and their effort to maintain his reputation as with their quality; Kennedy's doggerel is not quite the same. 

But the most important reason is the very hook on which the story hangs: Justice Kennedy was, in the cases the story cares about, a swing justice. It seems inevitable that a swing justice's legacy will dissipate quickly. (Justice O'Connor's star does not shine as brightly today either; indeed, it began dimming as soon as a new swing justice took her place.) To put it differently, the "legacy" of a swing justice does not have much to do with the future at all. The value of a swing justice lies in the present: in striking compromises that smooth things over for a little while in an area that is contentious on and/or off the Court. That's not necessarily a bad thing and may be a very good one. But it should be celebrated for what it is: a compromise, a fix for an immediate need, a bit of gaffe tape at a useful moment to make sure the car doesn't go careening in one direction or the other. What it is not is a recipe for a long-term "legacy." As Tushnet pointed out, occupying the role of a swing justice--in Kennedy's case, rather vocally and ostentatiously--meant that cases and arguments were bent in the direction of securing his vote. Once it was no longer a factor, it's natural that those arguments would migrate elsewhere. It may be that the fate of a swing justice is to command everyone's attention while he or she is on the Court and no one's for so much as a second after that. 

Incidentally, one thing the story does not mention is the role Kennedy's retirement has played in legal scholarship. A vast library of articles was written with the same short-term, instrumentalist goal of influencing Kennedy's vote before the fact and trying, as best as was possible, to explain and justify it afterwards. The Kennedy-massaging legal scholarship industry has now quite collapsed. It might experience a revival in a later generation, but for now most of it has fallen into desuetude. That may matter for larger reputational or "legacy" purposes as well.   

Posted by Paul Horwitz on September 3, 2023 at 09:51 PM in Paul Horwitz | Permalink


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