The Decider

by Eric A. Posner | January 11, 2010

Justice Anthony Kennedy has power, but he lacks respect. Situated at the ideological midpoint of the Supreme Court, he chooses the outcome when his eight colleagues are evenly divided. He has made his mark in important cases that, among other things, preserved the right to abortion, limited the death penalty, and expanded free speech. But legal commentators complain that he lacks a consistent jurisprudence. He talks a great game about constitutional principles, but tacks to the political winds or votes his ideological fancy.

Frank Colucci has joined a small band of scholars who disagree with such an analysis. (Another is Helen Knowles, who has just published a book entitled The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty, whose thesis is similar to Colucci’s.) Justice Kennedy, according to Colucci, has an appealing and consistent jurisprudence. He believes that the Constitution expresses a central commitment to liberty, and that the Supreme Court should protect that commitment. In practice, this “libertarian” reading of the Constitution implies that government cannot interfere with people’s choices except when those choices harm others. In contrast to this interpretation of the Constitution, originalists, such as Justice Scalia, believe that courts should enforce the original understanding of the Constitution, which embodies other values in addition to liberty. Other commentators argue that the Constitution is foremost a charter of democracy, and courts should generally defer to legislative judgments; or they identify other constitutional values (for example, equality) and claim that courts should uphold them.

The most significant problem with Colucci’s argument is that it is not clear what he means when he refers to “jurisprudence.” He argues that Kennedy adopts a “moral reading” of the Constitution, but he does not explain how this moral reading differs from Kennedy’s personal morality. Colucci sometimes writes as if having a “jurisprudence” only means voting in a consistent way: since Justice Kennedy allegedly votes in a consistently libertarian way, he therefore has a respectable jurisprudence. But jurisprudence means something quite different. For Kennedy’s libertarian reading of the Constitution to be jurisprudentially respectable, that reading must be based on the text of the Constitution, Founding-era understandings, precedents, constitutional traditions, or other legal sources external to his moral views. Otherwise, he cannot duck the argument that he simply enforces his moral views, which happen to be libertarian.

Colucci identifies some clues but they do not add up to a jurisprudence. Kennedy endorses the familiar idea that judges should not enforce the original understanding of the Constitution, but should constitutionalize and enforce evolving social values. Yet Colucci offers no evidence that Kennedy tries to enforce evolving social values. Why does Kennedy believe that society gives priority to liberty over all the other evolving social values that could be identified—equality, diversity, and privacy, to name a few? Neither Colucci nor Kennedy answers this question. Lacking an explanation, Colucci’s defense of Kennedy doesn’t make any headway against the suspicion that Kennedy votes his moral instincts, thus abusing his judicial role.

Another salient element of Kennedy’s jurisprudence is his reliance on foreign and international law for interpreting provisions of the Constitution. In an opinion striking down the death penalty for people who commit crimes as juveniles, he pointed out that virtually no other countries execute such people, and several international treaties prohibit this practice. Kennedy has used this method in other opinions and talked it up in speeches.

Yet it is not enough to say that because Kennedy uses foreign and international sources, he has a “consistent” or “coherent” jurisprudence. One needs a justification also for this practice. Colucci supplies none. Nor does he explain how this practice is consistent with Kennedy’s alleged commitment to liberty, which is certainly not a central value in many countries. And while Kennedy’s endorsement of the foreign law approach will be one of his most significant legacies for scholars, this practice seems to have petered out under hostile political winds. The Court has not used it in several years.

Colucci also argues that Kennedy’s jurisprudence is influenced by his Catholicism. It is not clear whether Colucci thinks that this is just an interesting biographical detail, or is making the more ambitious claim that Kennedy’s is a Catholic jurisprudence, one that reconciles the tension between constitutional values and Catholic values. Whatever the case, Colucci fails to identify anything distinctively Catholic about his subject’s rulings and opinions. When one thinks about Catholic theology, “liberty” is not the first word that springs to mind. Colucci argues that Kennedy derives his libertarian streak from the commitment to “human dignity” in Catholicism, noting that the word “dignity,” and some related words and phrases, appear both in certain post–Vatican II Catholic documents and in some of Kennedy’s opinions. But these bland and general expressions could appeal to anyone who belongs to any religious group, or to none at all–which is no doubt why Justice Kennedy would use them in opinions addressed to a predominantly non-Catholic audience. Who opposes human dignity, after all? Not Justice Kennedy or the Catholic Church, and yet they part company over abortion and homosexual sodomy.

It is just as well for Kennedy that Colucci’s claim about his Catholicism fails to convince. To say that his jurisprudence is influenced by his Catholicism is hardly to put his jurisprudence on a firm foundation, as Colucci wants to do. It is instead to say that rather than legislating his morality, Justice Kennedy legislates his theology. 

Kennedy stands out from his colleagues because of the frequency with which he votes to strike down statutes, and the vapid, flowery language he uses to explain his decisions. His aggressive posture toward statutes jars democratic sensibilities, and cuts against a scholarly trend favoring judicial deference. Although striking down statutes is hardly new, in the current environment it demands a more muscular justification than Justice Kennedy has delivered. Instead he delights in gaseous pronouncements. “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,” he wrote in an abortion opinion. But you cannot resolve the abortion controversy, which boils down to a dispute about the status of fetal life, by announcing that a constitutional right to liberty includes the right to define one’s own concept of existence. The phrase offers no reasoning, and no useful guidance. It also fails to anticipate Kennedy’s later votes to uphold several statutes that limit abortion. This vacuous New Age rhetoric turns off people who expect explanations when the judiciary overrules the legislative branch.

Abstract propositions about human values cannot decide cases. Everyone believes in liberty, but not everyone believes partial-birth abortions should be limited, or that racial preferences are objectionable, or that commercial speech should be protected, as Justice Kennedy does. Liberty, in his mind, explains the right to abortion, but does not stand in the way of certain limits on abortion. In what sense, then, does this commitment to liberty have explanatory power? The yawning gap between the constitutional bromides to which Justice Kennedy appeals, and the particular case outcomes for which he votes, accounts for the skepticism of his critics. Colucci does not close this gap, nor teach the critics a useful lesson.

Eric A. Posner is a professor at the University of Chicago Law School. 

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