opinion
Justice Anthony Kennedy swings key Supreme Court decisions
- Article by: NOAH FELDMAN , Bloomberg News
- Updated: June 2, 2011 - 10:02 PM
In this June 13, 2008 file photo, Supreme Court Justice Anthony Kennedy speaks at the Organization of American States (OAS), in Washington. The Supreme Court on Wednesday, June 25, 2008, outlawed executions of people convicted of raping a child.
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It's Justice Anthony Kennedy's country -- the rest of us just live in it. Or so it sometimes feels when the U.S. Supreme Court's most important decisions come down.
The most recent 5-4 decision with Kennedy writing the majority opinion ordered the release of some 46,000 inmates from California prisons over the next few years unless the state can find room for them in alternative county lockups.
Justice Antonin Scalia fulminated shockingly on the danger of releasing "fine physical specimens who have developed intimidating muscles pumping iron in the prison gym" onto the unsuspecting populace.
But dissent was all Scalia could muster: With the court's four liberals behind him, Kennedy couldn't be stopped.
Sometimes, of course, Kennedy is on the conservative side. Last month, it was Justice Elena Kagan who was outraged when a 5-4 Kennedy opinion, joined by the four conservatives, made it much harder for taxpayers to sue when the government violates the separation of church and state.
It is Kennedy's apparent unpredictability -- and his willingness to make common cause with both factions in different cases -- that is the source of his overwhelming power in court and country. This year, there have been nine 5-4 cases; Kennedy has been in the majority every time.
For years, Justice Sandra Day O'Connor played a similar role as a swing voter. A former state legislator, O'Connor was a pragmatic centrist, sniffing the wind to get a sense of where the median voter wanted to go and taking the court there with her.
Kennedy is different. His opinions tend to be grounded on strong statements of principle. Yet many find his tacking from right to left frustrating and unpredictable, and hint darkly at incoherence or self-aggrandizement.
The truth is that Kennedy's principles can be identified and explained, and that the explanation can help predict what Kennedy will do next in all-important cases, such as the constitutionality of the health care law or gay marriage.
• • •
As it happens, some of Kennedy's principles were on display in the California prisons case. The facts were simple: California's prisons are at roughly 200 percent of capacity. Physically and mentally ill inmates sued for adequate services.
Two courts over the last decade ordered improvements. When nothing happened, a special three-judge federal district court ordered that the facilities be reduced to 137.5 percent of capacity.
In reviewing the lower court's finding, Kennedy started with what is undoubtedly his favorite constitutional concept: dignity. Prisoners, he said, have lost their liberty, yet they maintain their dignity as human beings.
In fact, Kennedy asserted, the whole point of the Eighth Amendment's ban on cruel and unusual punishment is to preserve human dignity.
Once dignity was in play, Kennedy was essentially guaranteed to hold in favor of the inmates. He has invoked the principle in a bewildering array of contexts, always with decisive force.
Dignity was at the heart of Kennedy's vote to preserve the basic abortion right in the famous Planned Parenthood vs. Casey decision, where he wrote of the need to respect "choices central to personal dignity and autonomy."
It appeared again in the landmark case of Lawrence vs. Texas, when he found a right to choose one's sexual partner and so struck down an antisodomy statute.
More recently, he invoked dignity to uphold restrictions on so-called partial-birth abortions, reasoning that the congressional ban expressed "respect for the dignity of human life."
Perhaps most strangely, Kennedy relied on the dignity of state government to conclude that states couldn't be sued for money damages in their own courts, even if they broke federal law.
Dignity, of course, can mean many things. The key point, though, is that Kennedy takes it seriously.
• • •
There was another of Kennedy's pet principles at work in the prison decision: the vindication of the power of the judiciary. California had for years been flouting court orders demanding reform in prison health care.
If there is one thing that enrages Kennedy, it is seeing the courts ignored by other branches of government.
In 2008's Boumediene vs. Bush, the most dramatic of the Guantanamo Bay cases, he castigated Congress and the president for excluding the courts from supervising detention in the war on terror. "The Nation's basic charter," Kennedy wrote, "cannot be contracted away like this."
• • •
Given his commitment to dignity and judicial authority, his vote in the California prisons case wasn't unpredictable at all. Similarly, one can predict that when it comes to gay marriage, Kennedy will believe that human dignity means that everyone should have equal marriage rights regardless of his or her sexual orientation.
As for health care, the question is closer: Does mandatory insurance violate individual dignity-as-choice? Or does human dignity require universal health care?
Justice Kennedy's answer will be the law of the land.
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