James Taranto today said that he felt that Kennedy was principled enough that he would invalidate Proposition 8. I have to disagree.
First, Kennedy is not nearly as principled as Taranto imagines. Yes, he seems reasonably principled in defense of freedom of speech, but in terms of his interpretive methods, not so much. He joined Scalia’s opinion in Heller v. District of Columbia, which was an intensely originalist decision, determining how the Second Amendment would have been understood at the time it was ratified. And this was no mere joinder for convenience; in oral argument, he talked about how the founders would have considered life without guns unthinkable. He put on at least an act of caring what the founders believed.
Then along came Kennedy v. Louisiana. In that case they were called on to determine whether the term “cruel and unusual punishment” included executing a person for forcibly raping a child. And with apologies for being this explicit, but the Defendant in that case, also coincidentally named Kennedy, had raped his eight year old daughter so violently that it ruptured the wall between her vagina and her anus and she will never have children. Read the case and, to Justice Kennedy’s credit, he does nothing to excuse or diminish the cruelty of the act. So if Justice Kennedy was a principled follower of original intent this would be a no brainer. At the time of the founding, we executed horse-thieves. Killing a defendant like this scumbag is nothing compared to that.
But in fact (Justice) Kennedy declared it would be cruel and unusual to kill (Defendant) Kennedy for his crimes. That decision came only a day before the decision in Heller, leading some of my more sarcastic friends to argue that Heller made Kennedy v. Louisiana moot.
Another case, Planned Parenthood v. Casey likewise demonstrates Kennedy’s inconsistency. Kennedy is one of three justices—Souter and O’Connor—who delivered a rare opinion of the court with three authors. Before then, conservative legal activists had tried to create momentum against Roe v. Wade, and it was believed that finally the Supreme Court would be ready to strike that decision down. But this triumvirate held that precedents were so sacrosanct that even if they were wrong, they really shouldn’t be struck down.
But then it was only 17 years after Bowers v. Hardwick, where the Supreme Court that said that gay sex was not protected under the constitution, that Kennedy authored the opinion overturning Bowers in Lawrence v. Texas. So Lawrence itself was an act of hypocrisy, for which Scalia in dissent rightfully excoriates Kennedy and the majority—precedents are sacrosanct, except when they are not. Or to quote Scalia:
To tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis [the principle of deference to precedent] set forth in Casey. It has thereby exposed Casey’s extraordinary deference to precedent for the result-oriented expedient that it is.
In short, Scalia was saying that all that stuff about honoring precedents in Casey was bullshit, tossed to the side when it was no longer convenient.
But Kennedy’s actions are more consistent about is another value, which is preserving the institution of the Supreme Court. One thing you see in Kennedy v. Louisiana and Lawrence v. Texas is that he is only willing to do blatant activism when he believes that the people won’t really mind very much. So in Kennedy v. Louisiana he makes much out of evidence that the gestalt of the American people do not support giving the death penalty to child rapists. Likewise, by the time Lawrence came up, support for gay rights was significant, many states had legalized gay sex and prosecutions were rare. So while some principled persons would be outraged the vast majority of the American people aren’t terribly interested in enforcing anti-sodomy laws in the first place. Meanwhile, only a few states had enacted death penalty provisions comparable to Louisiana. Now I think in the case of Kennedy v. Louisiana, (Justice) Kennedy did misunderstand the will of the American people, and I do think that case reduced the confidence the public had in the Supreme Court, to the extent they were aware at all of the decision, but I can see Kennedy convincing himself: beforehand that the people won’t really get very upset about this.
And when you think about it Casey was about institutional protection, too. Kennedy and others surely thought that if the court overturned Roe under this sustained pressure it would be taken as a signal that the law depended more on the makeup of the Supreme Court than the actual law itself. One of the major sources of the Supreme Court’s prestige is the belief that it is above politics—that the judges are just umpires, to use Roberts’ vivid metaphor. Caving on Roe would be seen as compromising on that, at least in the eyes of the triumvirate of Kennedy, Souter and O’Connor.
Even Heller v. Dist. of Columbia might be seen as decision protecting the Supreme Court as an institution. First a persistent majority of the American people has felt pretty much the way the Supreme Court has ruled: that the second amendment protects an individual right to bear arms. So to a large portion of the American people a decision against gun rights would have been seen as illegitimate. Further it would have made conservatives feel like the game was rigged against them. In Silveira v. Lockyer, a panel in the Ninth Circuit ruled against the individual rights interpretation of the second amendment (prior to Doe), and the entire Ninth Circuit refused to hear the case en banc. Judge Alex Kozinski dissented from that refusal and wrote an absolutely classic dissent, that can now rightfully be considered controlling law in the ninth circuit. His attack on the majority’s selective protection of rights is scathing enough to quote at length (with citations omitted):
Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that "speech, or ... the press" also means the Internet, ... and that "persons, houses, papers, and effects" also means public telephone booths.... When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases — or even the white spaces between lines of constitutional text.... But, as the panel amply demonstrates, when we're none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.
It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it's using our power as federal judges to constitutionalize our personal preferences.
The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms.
(do read the whole thing. It is all very good and quite eloquent. And now it can be properly be characterized as controlling law.)
I don’t know if Kennedy ever read that dissent, but reading it you really see crystallized how unfair it all was, at least in the eyes of conservatives. The Supreme Court protected a right to privacy that wasn’t written there at all, come hell or high water, but couldn’t be bothered to vindicate a right that was plainly written. Among conservatives this contradiction significantly delegitimized the court. And of course people understand that if you want to protect an institution, you have to get a large amount of “buy in.” But conservatives were increasingly not buying in, because they felt that the Supreme Court was treating the constitution as a way to shove rules they didn’t want down their throat.
So by giving the pro-gun-rights side the majority in Heller, the Supreme Court greatly increased its prestige among conservatives and made it easier for conservatives to swallow liberal decisions they don’t like. The sarcastic comments of my friends that Heller mooted Kennedy v. Louisiana is only a crude example of that.
Did Kennedy intend those things? Beats me. But certainly it is always reasonable to imagine that people intend their actions to have their foreseeable results. So it is possible that even Heller was really about protecting the Supreme Court as an institution.
So with that in mind, we arrive at proposition 8. The fact is strong majorities of Americans oppose gay marriage. Even larger majorities opposed judicially imposed gay marriage. Just as few states executed child rapists bore on (Justice) Kennedy’s analysis in Kennedy v. Louisiana, the fact that few states recognized full gay marriage will bear on his mind here. And consider how dramatically the unpopularity of gay marriage has been demonstrated in this particular case. When the California Supreme Court first held that the California constitution demanded that there be gay marriage, it was assumed that this was the law from then on. But then the people rose up and struck down gay marriage—and in the midst of a Democratic “wave” election, no less. Let me emphasize this: even in California the people didn’t want gay marriage.
A victory for gay marriage before the Supreme Court would therefore be seen as illegitimate by vast majorities of the American people. Kennedy would rightly fear a popular uprising just like the one seen in California in passing Proposition 8 iteself. Indeed, he might even fear bullying similar to that seen in the New Deal era.
For that reason, for the sheer disdain he would bring down on the Supreme Court, I do not believe he will vote to overturn Proposition 8. A more likely possibility is that Kennedy will require states to create civil unions or domestic partnerships. Because after all, the majority of Americans also favor doing that. I could even imagine him gradually chipping away at it until those civil unions or domestic partnerships are marriages in all but name, by requiring them to have identical rights and obligations.
