It goes without much saying that Republican presidents have not had the best luck when it comes to Supreme Court appointments. Dating back to President Eisenhower, the promotion of figures like Chief Justice Earl Warren and Associate Justice William Brennan to the highest court in the land has produced incredibly negative ramifications for the Constitution — namely, the furthering of the court’s unintended role as progressives’ de-facto lawmaking body.
Fortunately, after decades of disappointments, it seems more modern Republican presidents and politicians are slowly but surely learning the mistakes of their predecessors when it comes to judicial selections.
While certainly not perfect, the high court’s current roster is a marked improvement over what Americans once had. By adopting a more originalist philosophy, many of the current Republican-appointed justices have been instrumental in cases rolling back the judicial activism of past Supreme Courts and ensuring proper separation of powers among the three branches.
Which now brings us to former Associate Justice Anthony Kennedy.
Last month, Kennedy released his long-awaited memoir, Life, Law & Liberty. Filled with stories from his personal and professional life, the book offers readers insight into the mind of one of the Supreme Court’s most curious justices.
What’s particularly notable about Kennedy’s SCOTUS nomination is that he was not the first person President Reagan tapped to fill the seat of outgoing Associate Justice Lewis Powell. The 40th president had originally nominated Judge Robert Bork — often viewed as one of the pioneers of the modern originalist movement — to fill the seat but withdrew Bork’s name after an egregious smear campaign spearheaded by then-Democrat Sens. Joe Biden and Ted Kennedy led the Senate to reject his nomination.
Reagan then turned to Judge Douglas Ginsburg to potentially succeed Powell. It was only after Ginsburg withdrew his name from consideration following a controversy involving past marijuana use did Reagan tap Kennedy, who would go on to serve as an active justice from 1988-2018.
It’s fair to say that many conservatives have a love-hate relationship with Kennedy’s tenure on the high court. While the California native delivered significant wins in several pivotal cases (Bush v. Gore and Citizens United v. FEC, to name a few), his role as a wild card — particularly in cases centered around individual “liberty” — left much to be desired.
Unlike Associate Justices Clarence Thomas and Samuel Alito, Kennedy does not subscribe to originalism or textualism. That is, the philosophies of interpreting the Constitution and statutes as originally written at the time they were adopted. Nor does he strictly adhere to living constitutionalism or pragmatism, which center around the idea that the Constitution’s meaning evolves over time to adjust to modern norms and that takes into consideration the “practical consequences” of a decision, respectively.
In his book, Kennedy opined that “it seemed unwise to adopt … originalism or pragmatism as part of a rigid standard in every case.” He claimed that while both “can be instructive,” “neither ensures that a proper result will follow.”
“In my view neither originalism nor untethered pragmatism has such force that the judge should choose one or the other to instruct in every case,” Kennedy wrote.
To illustrate the “complexity” of judicial interpretation, the Reagan appointee cited “freedom” and “liberty,” both of which are “in the Constitution’s text.” “The problem, though,” Kennedy noted, “is that, as originalists would be correct to say, that does not mean we can use those words and pretend they are textual commands outside their limited context.”
While Kennedy goes on to recognize the originalist perspective that, “In cases where the text does apply, the original meaning is of course instructive,” he then contended that “a judge cannot simply pluck an old dictionary from the wall and find the answer inside,” and that the “words’ definitional meanings provide the beginning of the analysis but cannot answer all the questions that arise in a case and controversy. We learn their meaning over time.”
“In key cases, debate over constitutional interpretation centers on the guarantee of ‘liberty’ in the Fifth and Fourteenth Amendments. In my view, the framers of our Constitution were not so self-assured as to think they knew what the spacious term liberty should mean in all its reach,” Kennedy wrote. “They were cautious enough, indeed modest enough, to know that the meaning of a word can unfold over time.”
It’s true that Americans’ usage and understanding of words evolve over time. It’s also true that many of the modern issues the Supreme Court grapples with, as Kennedy previously acknowledged, could not have been foreseen by the framers and that applying a more than 200-year-old legal document to modern cases presents its challenges.
Where Kennedy is wrong, however, is his mistaken belief that it is the courts’ role to “learn” or discover words’ new “meanings” when deciding cases. If a law’s text requires alteration to include new “meanings,” that is the role of the legislative branch — not unelected judges.
The reason originalism (and its counterpart, textualism) is superior to this unsound jurisprudence is that it respects separation of powers and provides a solid, uniform foundation for judicial interpretation. Should judges adopt Kennedy’s view, in which new “meanings” of legal texts’ can be continuously discovered, then there is no concrete soundness within the law.
Problems with Kennedy’s illogical jurisprudence were front and center in his ill-fated Obergefell v. Hodges decision, which opened the floodgates for so-called “gay marriage.”
In the chapter titled, “Gay Rights,” the Reagan appointee described the extensive research he undertook on marriage when writing the opinion. He noted that he took into consideration how, at the time, several states had enacted laws “allowing same-sex marriages” and how “hundreds of thousands of children were being raised by gay couples” — which he said, “became a critical point.”
In the end, Kennedy said, the court produced a decision saying that “the same two foundational precepts — liberty and equal protection — converged to create a compelling rationale for a right to same-sex marriage.”
“Obergefell recognized that the essential purpose, the thrill, and the beauty of marriage are fulfilled, not undermined, by including same-sex couples,” Kennedy wrote. “The institution of marriage honors personal choice, companionship, child-rearing, and civilization itself. Through marriage, the same principles extend to couples regardless of their sex, just as they extend to couples regardless of their wealth or race.”
Once again, Kennedy’s faulty jurisprudence rears its ugly head.
As the dissenting justices in Obergefell noted in their opinions, the majority’s arguments surrounding the 14th Amendment and there being a constitutional guarantee to “gay marriage” fall apart under the slightest bit of scrutiny. More to the point, Kennedy and Co.’s decision unilaterally stripped the power from the states to decide the issue — a point which Kennedy indirectly (and perhaps unintentionally) acknowledged in his book when discussing how several states had already enacted laws recognizing “same-sex marriage.”
None of this criticism is to call into question Kennedy’s character. By all accounts, he seems like a nice man who genuinely cares about his family, country, and the Supreme Court.
The fact remains, however, that his style of judicial interpretation is one that too often deviates from what the Constitution requires.
Life, Law & Liberty is a compelling memoir that puts the nice finishing touches on Justice Kennedy’s extensive and extraordinary career. But at the same time, let’s hope that it marks an end to an era of nominating individuals whose flaky conservative jurisprudence leaves the Constitution’s integrity up in the air.
Shawn Fleetwood is a staff writer for The Federalist and a graduate of the University of Mary Washington. He previously served as a state content writer for Convention of States Action and his work has been featured in numerous outlets, including RealClearPolitics, RealClearHealth, and Conservative Review. Follow him on Twitter @ShawnFleetwood
