By Eric Segall, Kathy and Lawrence Ashe Professor of Law
During his 30 years on the bench, U.S. Supreme Court Justice Anthony Kennedy angered people across the political spectrum. His decisions on gay rights, abortion, and prayer in school alienated the right, while his decisions on corporate speech, sovereign immunity and congressional power disturbed the left. While reasonable people can disagree over how Justice Kennedy voted in these cases, what also is true is that he told us from the beginning what kind of justice he was going to be, and his opinions usually reflected his values without relying on formal legal doctrines to hide his judgments. He was our most transparent justice.
Ronald Reagan nominated Kennedy to the bench after the Senate rejected Judge Robert Bork and the next nominee withdrew. During his confirmation hearing, Kennedy repeatedly testified about the libertarianism and belief in a strong judiciary that would mark his long career. When he was asked about the right to privacy and other aspects of the human experience he thought the Constitution protected, he said the following:
A very abbreviated list of the considerations are the essentials of the right to human dignity, the injury to the person, the harm to the person, the anguish to the person, the inability of the person to manifest his or her own personality, the inability of a person to obtain his or her own self-fulfillment, the inability of a person to reach his or her own potential.
Justice Kennedy’s four gay rights opinions, as well as his abortion decisions, reflected these sentiments. In another important statement he made during his confirmation hearing, Kennedy said the following:
[The idea of liberty] is central to our American tradition. It’s central to the idea of the rule of law. And that there is a zone of liberty, a zone of protection, a line that’s drawn where the individual can tell the government: Beyond this line you may not go.
Whether the case involved gay or reproductive rights, freedom of speech, freedom of religion, or other aspects of personal liberty, Kennedy strongly enforced his views of personal autonomy — and not with legal jargon but with honest sentiments. One of his most famous (and most criticized by formalists) opinions came in a case where the court struck down Texas’ prohibition on private, consensual, same-sex sodomy. This famous paragraph comes almost directly from Kennedy’s confirmation process statements:
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
Unlike many of the other justices, Kennedy’s decisions rarely hid behind ambiguous text and contested history. One of the most divisive legal questions of the 1990s was whether states could place term limits on members of Congress. When the issue reached the Supreme Court in 1995, Kennedy joined the four liberals to hold the limits unconstitutional. Justice John Paul Stevens’ opinion for the four liberal justices and Justice Clarence Thomas’ opinion for the four conservative dissenting justices totaled more than 100 pages and 91 footnotes arguing about text, history and precedent. The justices reached opposite conclusions, which makes sense — any fair reading of the materials would result in a tie.
Kennedy’s concurring opinion did not engage in the charade that a correct answer could be found in the offsetting materials of the past. Although he discussed a bit of ratification history, his swing vote was based on his belief that the people of this country are better off with a Congress where each member is selected in an identical manner. He thought it crucially important that the federal government’s national identity be distinct. Kennedy’s conclusion may or may not be right, but he did not hide his rationale behind vague language or disputed historical evidence.
Although Anthony Kennedy may have been the most controversial justice of the last 30 years, voting to strike down more laws than any other justice, his honesty and transparency will be sorely missed. He didn’t talk the talk of originalism or textualism that usually hides the justices’ true value judgments from the American people. For better or worse, Justice Kennedy told us exactly how he felt and how he came to his legal conclusions. The Supreme Court will be a lot less transparent now that he has hung up his robe.
Eric J. Segall, Kathy and Lawrence Ashe Professor of Law, teaches federal courts and constitutional law I and II. He is the author of the books Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges and Originalism as Faith.