Federal Judiciary

Book review: Justice Kennedy’s law

By Akin Gump Supreme Court Practice Group

Book review

Frank J. Colucci, Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty, University Press of Kansas (Lawrence, Kan., 2009), 186 pp. (cloth), $34.95.

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For all the power and influence that Justice Anthony M. Kennedy wields on the current Supreme Court, one would think there would be a full understanding — at least in the academy — of his approach to the law, his judicial philosophy.  That is not the case.   Few understand him in the way that virtually everyone can, and does, understand the more accessible philosophy of, say, his colleague, Justice Antonin Scalia.

Kennedy is, on this Court, decidedly a centrist, and that is a position that seems to draw criticisms of vacuity.  If there has been a common theme running through commentary on Kennedy’s jurisprudence, it is that he actually has no philosophy to speak of, that the deployment of his often-decisive vote is simply opportunistic, perhaps even capricious.

Now, the gap in understanding has been at least partly — and nicely – filled, by Frank J. Colucci, an assistant professor of political science at Purdue University-Calumet.  The professor has mined Kennedy’s public papers, including useful material from beyond the bench writings, and produced a readable volume of analysis that is, on the whole, convincing.

The book’s scholarly effect will be to give readily understandable meaning to the concept of constitutional liberty, at least as Kennedy views it.  The book’s political effect very likely will be to reinforce the complaint of Kennedy’s critics on the Right that a judge’s pursuit of “liberty” is merely a plumbing of the jurist’s personal value preferences.

“Liberty,” in the constitutional sense, has come to be associated with an interpretive method that discerns changing meaning in the spare words of the founding document — a process, perhaps, of keeping the Constitution up to date, with the changing times.  (Curiously, the modern notion of constitutional “liberty” is very different from the stodgy, anti-progressive use of that idea in the Lochnerism of the pre-New Deal era.)

The judicial project of redefining “liberty,” of course, is the very antithesis of the originalist method — that is, trying to find the one true gospel of enduring meaning — traceable, hopefully, to the Founders themselves.

Colucci’s sub-title sums up why Kennedy’s jurisprudence is far closer to the tradition of judicial progressivism than to originalism.  The phrase is drawn from Kennedy’s remark before the Senate Judiciary Committee at his nomination hearings 22 years ago.  Judges, he said then, have the responsibility “to insure that the word liberty in the Constitution is given its full and necessary meaning, consistent with the purposes of the document as we understand it.”

Canvassing how Kennedy has applied that approach, across a wide spectrum of constitutional issues, the professor concludes that Kennedy “is neither a profile in caprice nor a judicial minimalist.”

As Colucci repeatedly illustrates, Kennedy is simultaneously bound by text and liberated from original understandings.  He does not believe that the judge is free to refashion “a compact that was made 200 years ago,” and yet the judge of today is not only free, but is obliged, to keep searching for a contemporary understanding of the “Founders’ intentions.”

And what that pursuit comes down to for Kennedy, most of the time, is the discovery of broadly-embraced (not personally held) moral values that sustain “human dignity” and that enable the individual person to reach self-fulfillment, to achieve his or her own potential.  Appreciating this, Colucci is able to make more sense than most commentators have of Kennedy’s emergence as the Court’s most sympathetic voice and vote for expanding gay rights — perhaps the most controversial part of “Kennedy jurisprudence.”

Colucci, understandably, has some difficulty fitting Kennedy’s abortion jurisprudence into Kennedy’s liberty-based approach.  But, in this respect, too, Colucci is true to Kennedy: the Justice himself is deeply conflicted on the constitutional questions involved.  The professor readily acknowledges “the tension” between Kennedy in the Roe v. Wade-rescuing opinion in Casey v. Planned Parenthood in 1992 and the paternalism of his 2007 opinion in Gonzales v. Carhart — the first and so far only Supreme Court decision to uphold a complete ban on a medical method of abortion.

One of the most valuable parts of the Colucci study is his correlation of Kennedy’s jurisprudence with Kennedy’s Roman Catholicism.  For all the hostility that Kennedy’s role in the Casey opinion drew from the Church’s hierarchy, the book demonstrates that the Justice’s moral perceptions are quite strongly influence by Catholic teaching (although not in the sense of a narrow catechism of dogma).

The professor also does a valuable service in explaining another of Kennedy’s habits that maddens his conservative critics: his examination on foreign sources of moral ideals to inform American constitutional meaning.

Occasionally, as Colucci strives to construct coherence out of Kennedy’s overall approach, the reader begins to sense a suspicion that the argument is being forced.   Usually, though, staying with him until a particular exploration is completed, the reader is led to conclude, “Ah, yes, I see it now.”

Full post as published by SCOTUSBLOG on December 29, 2009 (boomark / email).