Justice Anthony Kennedy followed Justice Sandra Day O'Connor as the "swing justice" on the Supreme Court. Both justices are brilliant and devoted to the Constitution – but their approaches to constitutional decisionmaking could not be more different.
The swing justice on the Supreme Court not only casts the deciding vote, but also has the bargaining power to demand the opportunity to author the majority opinion – to cast the Constitution in the mold that he or she chooses. As a result, going forward more and more of the most significant decisions of the Court, like Citizens United, will be written by Anthony Kennedy. What distinguishes Kennedy's jurisprudence from that of Sandra Day O'Connor, whom he replaced as swing justice?
I see two distinguishing features in their approaches to constitutional interpretation. First, using a distinction noted by Judge Richard Posner, Kennedy is more of a "top down" judge – he deduces results from general, overarching principles. O'Connor is more of a "bottom up" judge – she starts with a careful examination of the facts, is attentive to context and nuance, and is more likely to identify and explicitly balance the competing elements of a case in reaching a decision. Second, although Kennedy devotes a great deal of attention to the matter of following precedent and the principle of stare decisis, O'Connor takes these concepts more seriously.
In this post I will discuss the first distinguishing feature between them – "top down" versus "bottom up" reasoning, and compare their jurisprudential styles to those of other justices. In a future post I will compare their approaches to the use of precedent and stare decisis.
Justice Kennedy, like Plato, lives in a world of perfect forms. To him, the most beautiful word in the Constitution is the word "liberty," and for him it has almost mystical significance. Here is how he describes the concept of the Right to Privacy in Lawrence v. Texas:
"These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. 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."
And here is what Justice Kennedy wrote about the role of "liberty" under the doctrine of Separation of Powers in his concurring opinion in Clinton v. New York, the line-item veto case:
Liberty is always at stake when one or more of the branches seek to transgress the separation of powers.
Separation of powers was designed to implement a fundamental insight: Concentration of power in the hands of a single branch is a threat to liberty. The Federalist states the axiom in these explicit terms: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands ••• may justly be pronounced the very definition of tyranny.” The Federalist No. 47. So convinced were the Framers that liberty of the person inheres in structure that at first they did not consider a Bill of Rights necessary. The Federalist No. 84. It was at Madison's insistence that the First Congress enacted the Bill of Rights. It would be a grave mistake, however, to think a Bill of Rights in Madison's scheme then or in sound constitutional theory now renders separation of powers of lesser importance.
The plurality opinion of Justices Kennedy, O"Connor, and Souter in Planned Parenthood of Southeastern Pennsylvania v. Casey begins and end with the word "liberty," and the first word of Kennedy's majority opinion in Lawrence v. Texas commences is "liberty" and the last word is "freedom." These ideas are, for Kennedy, the alpha and the omega of constitutional analysis.
O'Connor, in contrast, is sensitive to all aspects of the human condition. As Thorgood Marshall said in his dissenting opinion in United States v. Kras:
"[I]t is perfectly proper for judges to disagree about what the Constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live."
For example, in Lynch v. Donnelly, in which the Court was asked to decide whether the City of Pawtauket, Rhode Island, could display a nativity scene in a town park, O'Connor describes the entire display in fine detail, and concludes that in the context of this particular display it was constitutional for the city to include religious imagery – that taken as a whole, the display was not an "endorsement" of religion. You may disagree with the conclusion that Justice O'Connor reaches in this case, but you cannot accuse her of neglecting any detail or failing to consider any aspect of the problem before the Court.
The contrast between Justice O'Connor and Justice Kennedy's approaches to constitutional decisionmaking is strikingly apparent in two significant decisions on campaign finance reform – O'Connor's opinion in McConnell v. F.E.C. (2003) upholding important provisions of the McCain-Feingold Act, and Kennedy's opinion Citizens United v. F.E.C. (2010) striking down some of those same provisions. Both opinions are extremely long, but O'Connor concentrates on the facts while Kennedy is mostly concerned with the principles that are at stake. O'Connor devotes tens of pages to describing the history of campaign finance reform in the United States, and to summarizing the legislative record, which itself ran to over 100,000 pages. Kennedy gives short shrift to the facts, to the point of striking down the campaign finance law "on its face" – allowing both nonprofit and for-profit corporations to purchase campaign ads in any and every circumstance – even though the plaintiff had only challenged the law "as applied," the facial challenge wasn't argued in the trial court, and the parties did not develop a record in the trial court about what the consequences of the decision would be. As a result Citizens United was decided in the absence of an evidentiary record that could have informed the decisionmaking of the Court.
Justice Kennedy is devoted to the First Amendment as a matter of principle. Like Justice Hugo Black, he tends towards First Amendment absolutism. For example, he believes that laws restricting the conduct of abortion protestors at clinics – even where there is proof that protestors were blocking entrances and harrassing patients and staff – violate the First Amendment. Unlike Black, however, Kennedy is no textualist – he does not interpret the Constitution literally. Nor does he engage in extended analysis of the intent of the Framers, attempting to divine how they would apply the Constitution to modern-day corporations. Instead, Anthony Kennedy takes a simple, direct approach to First Amendment analysis. He would almost always allow speech even where it might cause a great deal of harm – let the cards fall where they may. O'Connor always wanted to know where those cards were going to fall before she made a decision.
Visit Professor Huhn's website on Constitutional Law for information and links to sources – both timely and historical – on constitutional law.
