The Full and Necessary Meaning of Liberty
by Frank J. Colucci
University Press of Kansas, 2009, 243 pp., $34.95
The Tie Goes to Freedom:
Justice Anthony M. Kennedy on Liberty
by Helen J. Knowles
Rowman & Littlefield, 2009, 285 pp., $44.95
It is often suggested that the Roberts Court, taking its name as tradition holds from the Chief Justice, is more aptly labeled the Kennedy Court. There is a good deal of sense in this proposition: On nearly all fronts, the Court goes as Justice Anthony Kennedy goes. Kennedy’s is the pivotal vote on a closely divided Court; and since he joined it in 1988 he has been more consistently in the majority than any other justice. In the 2006–07 term he voted with the majority in the Court’s contentious five-to-four decisions a remarkable 100 percent of the time.
What’s more, Kennedy frequently writes for the majority in these controversial and highly contested cases. He wrote the Court’s opinion striking down sections of the McCain-Feingold campaign finance law, he authored the opinion in the Court’s most recent affirmative action case and its two most important opinions regarding gay rights, and he was behind the Court’s 1992 opinion that upheld the central logic of Roe v. Wade (and a woman’s right to abortion). At the time of this writing, there is a case at trial in a U.S. District Court in San Francisco that challenges the constitutionality of California’s Proposition 8, passed by a slim majority in 2008, which amended the state constitution to prohibit gay marriage. If the case makes it to the Supreme Court, as the issue of gay marriage is bound to in time, all eyes will be on the Californian: Justice Kennedy.
And yet, Justice Kennedy remains a puzzle. He is often characterized by court watchers as behaving in an unprincipled or even confused manner, and some claim that he is more attached to his sense of judicial power than he is to principled constitutional reasoning. “Arrogant” and “capricious” have often been invoked to describe Kennedy’s opinions—particularly his view of the role of justices in the constitutional scheme. He repeatedly insists that the Court is the Constitution’s “voice.” In Kennedy’s hands, the Court’s opinions become, in the late Edward Corwin’s phrase, “the very body and blood of the Constitution.”
Kennedy’s own rhetoric tends to obscure the logic that underlies his opinions, even for those who would seek, sympathetically but critically, to draw out his reasoning in the benign interest of simply understanding it. It is not without irony that Kennedy, who aspires to be a teacher, writes in manner that is not always instructive. In this he has frustrated his would-be supporters as often as his critics. Indeed, the two groups tend to switch sides from case to case, which only compounds the portrait of Kennedy as a vacillating jurist.
Given Justice Kennedy’s obvious importance on the Court, two books recently published about him are particularly welcome insofar as they both seek to offer a coherent (and largely sympathetic) account of his jurisprudence by grounding it in a robust understanding of liberty. According to both Frank Colucci and Helen Knowles, it is Kennedy’s understanding of liberty that unites the seemingly disparate strands of his opinions. If these works share a general theme, they nevertheless remain complementary rather than duplicative. Knowles’s The Tie Goes to Freedom portrays Kennedy as a “moderate libertarian” and focuses on the areas of law—freedom of speech and due process in particular—where we vividly see Kennedy’s understanding of “constitutional liberty.” Coclucci’s Justice Kennedy’s Jurisprudence, offering a more rounded examination of Kennedy’s universe, connects his understanding of liberty and human dignity to Catholic thought, and takes up as well issues of federalism and separation of powers.
While both books make provocative and promising cases for a reasonably consistent Justice Kennedy, neither is fully persuasive. This is largely the failing of Justice Kennedy and not the authors. If Kennedy has sought to offer a constitutionally rooted understanding of liberty that begins with “individual dignity”, he has offered, at best, a partial account of his constitutional vision. This is evident not only in several of his opinions, but most particularly in what has been unreflectively dismissed in the post-New Deal era as mere “economic” liberty. As both Colucci and Knowles persuasively affirm, Kennedy, more than any other justice in several decades, has broken with the post-New Deal framework of civil liberty and its system of “two-tier” judicial review. Yet he stands uncritically wed to the New Deal effort to read economic liberty out of the Constitution. This area is all the more relevant as the Obama Administration’s action in the economic realm, particularly on health care, may soon bring economic liberty before the Court in a way we have not seen since the early years of the New Deal.
For those unfamiliar with the Court’s perplexing “two-tier” approach to judicial scrutiny that has been in place since the New Deal years, it is helpful to step back and situate Justice Kennedy against these developments. In the wake of the New Deal, against the backdrop of what was criticized as an overly active Court, the Court developed a new standard of judicial review through which it could reconcile the purportedly “countermajoritarian” nature of judicial review with the democratic process. In this scheme, the Court would by and large defer to legislative bodies, whether Congress or the states, and apply the “first tier” of judicial scrutiny—the “rationality test”, as it has come to be known. In these cases, the Court would simply ask: “Could the legislature have a plausible reason for passing this law?” As both authors note, nearly all laws are found constitutional under such a test. In the “second tier” of review, the Court would apply a more exacting standard—what has come to be known as “strict scrutiny.” In these cases, the Court would demand that laws served “a compelling governmental interest” and be “narrowly tailored” to that interest.
Initially put forward in the Court’s most famous footnote, footnote four of United States v. Carolene Products (1938), it was suggested that laws which impinged upon the democratic process itself, that ran counter to those rights enumerated in the Bill of Rights, or that harmed “discreet and insular minorities”, would be subject to this more exacting judicial scrutiny. Much of constitutional law since Carolene Products has composed a debate on precisely when the Court should apply “strict scrutiny.” Textualists like Justice Antonin Scalia have insisted that the Court should only apply “strict scrutiny” to those rights enumerated in the Bill of Rights or firmly grounded in history and tradition. This has, of course, led him to be deeply critical of the Court’s protection of certain zones of privacy—especially with regard to contraception, abortion and homosexual sodomy. Other justices, John Paul Stevens for instance, have insisted that those liberties which are “fundamental” should be subject to strict scrutiny (inviting debate on precisely what rights are “fundamental”). For all of the disagreement on precisely which liberties are entitled to robust judicial protection, the debate is not about the two-tiered framework itself, but over when to apply “strict scrutiny.” Nearly all of the justices insist that the abrogation of a “right” of some form is necessary to trigger a more exacting judicial scrutiny. All of the justices, that is, except Justice Kennedy.
As Colucci argues, Kennedy was uncomfortable with the deferential structure of judicial review and the presumption that legislation was constitutional even before he joined the Supreme Court. Colucci quotes Kennedy insisting, as early as 1982, “I would contend that courts should rescind the rule that [a] legislative act is presumed to be constitutional. A presumption should not exist if it does not mirror reality.” Kennedy has broken with this standard in two clear cases—Romer v. Evans and Lawrence v. Texas—where he struck down legislation under the “rationality test”, but gave the test far more bite than it had ever had in the past. In each case, Kennedy insisted that the legislation at issue “degraded” a class of persons—homosexuals—merely to express “disapproval” of homosexuality. As such, the law did not serve a “rational” purpose. At the same time, Kennedy did not insist that there was a “fundamental right” to engage in homosexual sodomy. On both fronts, Kennedy’s logic broke with the post-New Deal framework of judicial review because it placed the burden on the state to justify its legislation without articulating any “right” that was clearly at stake in the outcome.
Kennedy has also broken with the post-New Deal understanding in rejecting democracy and majority rule as the touchstone of legitimacy against which judicial review must justify itself. “Kennedy’s liberty-based constitutionalism rejects the post-New Deal deference to the other elected branches of government”, notes Colucci. Thus Kennedy has insisted that individual liberty is the “value most central to the Constitution.” Knowles casts Kennedy’s view in “moderate libertarian” terms and examines his record in the areas of freedom of expression, equal protection, race-based classifications, and individual decision-making of a “non-economic” variety. Her choices reflect the contemporary preoccupation with “rights” in isolation from constitutional structure, as if the two were necessarily separate—a view that does not track with much of our constitutional history. Folding federalism and separation-of-powers concerns into his analysis of more traditional rights cases (such as free speech, affirmative action and abortion), Colucci shows that “Kennedy believes that courts must police questions of constitutional structure to preserve individual liberty.”
Despite their somewhat different emphases, both authors make a reasonable and nuanced case that Kennedy’s decisions are rooted in his conception of individual dignity: Individuals have the liberty to not only make their own choices, but to be free of government classifications and coercion that is inconsistent with individual autonomy. Kennedy, accordingly, rejects government classifications of “homosexual” in much the manner that he rejects government classifications based on race. He also rejects state endorsement of religious activity, but he allows state funds to find their way to religious organizations so long as it is by way of individual choice.
Both Colucci and Knowles also draw out an important and often overlooked point in Kennedy’s opinions on so-called privacy cases. Beginning in the 1960s, the Court invoked the language of “privacy” to strike down intrusions into the “marital bedroom.” With little in the way of logical exposition, the Court then began to apply the “right” of privacy to abortion. Privacy has since become the touchstone in sexual relations and marriage. This has remained awkward in that “privacy” is not enumerated as a “right” in the Constitution and many of the activities that are presumed to fall under this elusive “right” are themselves not “private.” This has long troubled Kennedy. Beginning with his opinion upholding Roe v. Wade, he began to shift the terms of the debate from “privacy” to “liberty.” As Kennedy said at his confirmation hearings, “I prefer to think of the value of privacy as being protected by the liberty clause.” While Kennedy has not put it so squarely, the question might be best framed not as a general “right to privacy” but as a question of why the state is, in any particular instance, attempting to intrude upon an individual’s liberty.
Yet it is precisely here that Kennedy’s thought remains partial at best, inconsistent at worst. Individual autonomy—the right to make choices about children and family, for example—is more rooted in the American constitutional tradition, undergirded by the theory of natural rights, than many of Kennedy’s critics admit. And both Knowles and Colucci do a nice job of illustrating how, despite Kennedy’s often inchoate rhetoric, his vision of individual autonomy is more restrained and responsible than it may seem at first glance. Still, Kennedy has not been very good at connecting his understanding of liberty to constitutional roots. Nor has he taken up other liberties associated with individual autonomy—such as the right to choose a calling, to labor and to contract—that are as deeply rooted in American constitutionalism as any others. Kennedy remains wedded to the post-New Deal attempt to mark off economic activity as separate from and unrelated to civil liberty. One gathers from the authors that Kennedy is unreflective of much of our constitutional history, where economic liberty enjoyed robust protection in a manner well suited to his own understanding of “liberty responsibly exercised.”1
Consider, for a moment, Kennedy’s acquiescent concurring opinion in the case of Kelo v. City of New London. In this already famous case of 2005, the city of New London, Connecticut seized private homes as part of the city’s economic development program. The centerpiece of the program was the building of facilities to lure the Pfizer Corporation to the city, which, the city argued, would create general economic prosperity. In upholding the taking of private homes whose land was essentially transferred to another private entity, the Court said this was acceptable as a variety of eminent domain, under rational standard review, because such a move might constitute a broad “public purpose.” Interestingly, the Court shifted the textual language of the Fifth Amendment from “public use” to “public purpose” in a manner that watered down a textually explicit constitutional right. The irony here is that these verbal gymnastics aside, Pfizer has since pulled out of the deal and the ground these private homes once stood upon remains barren.
Kennedy not only joined the majority’s opinion in Kelo, he wrote a concurring opinion insisting that the case “survives meaningful rational basis review that in my view is required under the Public Use Clause.” If Kennedy has at times broken with the post-New Deal framework, in Kelo he went so far as to offer scant judicial protection to a clearly enumerated right. It is hard to avoid the conclusion that Kennedy’s view in Kelo is flatly inconsistent with his focus on individual liberty. Colucci and Knowles, alas, barely touch on Kelo.
The Kelo case is one that lends credence to the notion that Kennedy is above all else wed to judicial power. Here, too, Kennedy’s rhetoric is unhelpful. As he wrote in one case, insisting that the people would be “tested” in their willingness to follow the Court, “If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals.” His defense of a robust judicial role in regard to liberty is refreshing, as is his rejection of democracy as the primary measure of our Constitution. Yet Kennedy has reduced the whole of American constitutionalism to the Court, a view that seems to display a stunning ignorance of American constitutional history. Would he be surprised to learn that James Madison, among numerous others, insisted on the equal importance of the other branches of government in interpreting and enforcing the Constitution, and that such a separation of powers was the best way to preserve individual liberty?
As good as Justice Kennedy’s Jurisprudence and The Tie Goes to Freedom are in covering the ground of Kennedy’s jurisprudence, and offering it a sober defense that the justice himself has rarely mounted, it is a shame they did not push the deeper, more philosophical questions more forcefully. Given his pivotal position, Kennedy surely needs to think more carefully about them. His answers might even be intriguing. Following the implications of his own thought, perhaps he would be compelled to break with the unstable post-New Deal framework of judicial review. Looking forward, perhaps the Obama Administration’s eagerness for regulating the economy and its approach to health care will give Kennedy the opportunity to expound more fully on what he has dubbed “the full and necessary meaning of liberty.”
1No less a figure than James Madison insisted that the protection of property was the end of government. In speaking to the importance of free speech and freedom of conscience in shaping individual autonomy, Madison compared such liberties to property, insisting we have “property” in our opinions.