Official Photograph of Justice Anthony KennedyIn the first installation of this series, I briefly mentioned the visceral public debate that ensued this past summer over the Supreme Court’s gay marriage decision.  While much of the discussion focused on subjective moral arguments, in the legal world, all eyes were on Justice Anthony Kennedy.

Over the past few decades, Justice Kennedy has gained a reputation for being the “swing vote” in contentious Supreme Court cases.  Let me explain:

The Court consists of nine Justices—each with one vote.  Currently, there are four Justices who generally side with the “liberal” view of things, and four (except for Benedict Arnold, wait, I meant Chief Justice John Roberts in the Obamacare cases) consistently on the “conservative” side.  Justice Kennedy, on the other hand, will often unpredictably come out on either side—“swinging” the Court’s decision one way or the other.

True to his reputation, Justice Kennedy was indeed the swing vote in the 5-4 gay marriage ruling in June—siding with the liberal wing of the Court.  While Kennedy has been characterized as a “human jump ball” for his unpredictability, his decision on gay marriage actually wasn’t much of a surprise.

The Jurisprudence of Anthony Kennedy

Nominated to the Court by President Reagan in 1987, Justice Kennedy began his tenure as a markedly conservative Justice.  In his first term, he aligned his vote with Justices William Rehnquist and Antonin Scalia (staunchly conservative jurists) more than 90 percent of the time.

In the 1990s, however, Kennedy began to part ways with his conservative colleagues.  He co-authored Planned Parenthood v. Casey, a case that upheld the “right” to an abortion and ruled that states could not place an “undue burden” on exercising that right.  Later, he wrote the majority decisions in Romer v. Evans, Lawrence v. Texas, and United States v. Windsor, all of which were “pro-gay rights” decisions.  Accordingly, many SCOTUS commentators considered Kennedy’s decision to “legalize gay marriage” a logical outgrowth of his prior jurisprudence.

Although Kennedy leans conservative, he has developed into more of an independent and unpredictable Justice.  While some commentators applaud his thoughtful independence on certain issues, others argue Kennedy’s jurisprudence fails to reflect any particular ideology.

Perhaps the key point of departure from his conservative colleagues is Kennedy’s view of the 14th Amendment.  As I noted two weeks ago, the 14th Amendment forbids states from denying any person “life, liberty or property, without due process of law.”


Beginning in the early 20th Century, the Court began identifying certain “liberty” interests which states may not deny citizens.  Though not mentioned in the Constitution, this is where we get certain liberty and privacy rights—such as the right to homosexual sodomy, to use birth control, to control the education of one’s children, to have an abortion, to marry, etc….  Basically the idea here is that states have no business controlling what folks do in their personal lives.  Using the 14th Amendment, the argument goes: “there are certain liberties that are so fundamental to a democratic society, that no ‘process’ will suffice to take them away.”  In legal jargon, this principle is known as substantive due process.

For an originalist, such as Justice Scalia, substantive due process isn’t a Constitutionally prescribed principle, but rather a judge-imposed doctrine rooted in a misguided interpretation of our founding document.  The rights to activities such as sodomy and abortion aren’t found in the text; rather, these are “extra” rights read into the Constitution as “fundamental” liberties secured by the 14th Amendment.  As a result, this doctrine gives the Supreme Court broad authority to determine which rights are indeed “fundamental,” and thus, protected by the Constitution and rights which are not—a power, Scalia would argue, is inappropriate for the judicial branch.

In contrast, Justice Kennedy embraces the doctrine of substantive due process.  Some have even described him as a “civil libertarian.”  In making his case that certain rights are “fundamental,” Kennedy’s opinions will often incorporate lofty philosophical notions that appeal more to sentiment than legal precepts.

Take these for example:

  1. On abortion:

“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.”  (Side note: I have to include Scalia’s response to this.  It’s too good not to: “The issue is whether [abortion] is a liberty protected by the Constitution.  I am sure it is not.  I reach that conclusion not because of anything so exalted as my views concerning the ‘concept of existence, of meaning, of the universe, and of the mystery of human life’ . . . but because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.”)

  1. On gay marriage:

“The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation…There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.”

After the Court’s decision in June, some commentators have labeled Kennedy the “Thurgood Marshall of gay rights.”  (This, however, may be a stretch considering some of Marshall’s achievements, such as being a preeminent force in ending legal segregation and the first African-American on the Supreme Court).

Thurgood Marshall pic

While I don’t agree with some of Kennedy’s interpretive choices, I do believe in an independent judiciary.  Judges are to uphold and protect the Constitution unmoved by outside pressures and partisan coercion.  Even when Kennedy’s position draws the ire of conservatives, there’s something attractive and refreshing in Kennedy’s unpredictability.  When the next major Supreme Court case makes headlines, one might predict how most of the Justices will vote.  But how will Justice Kennedy “swing?” Well, that’s to be determined.

What are your thoughts about Anthony Kennedy and his approach to the Constitution?  Leave a comment on Facebook or Twitter!