Just before last year’s Obamacare ruling, Time Magazine released a profile of Justice Anthony Kennedy. The authors chronicled his Sacramento upbringing, where he worked for California golden sons Earl Warren and Ronald Reagan, and presented an optimistic view of the justice’s legal philosophy, painting it as a pragmatic alternative to his ideological counterparts. Yet after his U.S. v. Windsor decision, one full of self-righteous morality and contempt for the opposition, Kennedy has been pilloried as a self-made monarch, raising the question of the role of judicial activism in America’s conception of democracy.
Origins of the Court’s Role
The origins of the Supreme Court were modest. Shuffled into the basement of the Capitol when it was first built, the institution was created as the least powerful among the branches. It was not until the establishment of judicial review in Marbury v. Madison, where Chief Justice John Marshall gave the Court the power to issue declarations of constitutionality on federal statutes, that the third and forgotten branch of government reared its head. Marshall’s decision paved the way for a number of influential decisions by the Court in the 19th century, from the Barron v. Baltimore (1833) decision that began the process of selective incorporation to the Dred Scott v. Sandford (1857) decision that stoked the fires for the Civil War
In its early decades, the Court hewed closely to previous decision and precedent, taking care to move the legal needle incrementally. The justices were cautious of “legislating from the bench,” a pejorative for judicial activism. The instances of egregious judicial decisions without strong legal foundations were few and far between; even Dred Scott was based on a constitution that classified slaves as three-fifths of a person. The trouble began early in the 20th century, where a pair of decisions – one on each side of the ideological spectrum – laid the groundwork for the Court’s increased presence later in the century. In both Lochner v. New York (1905), where the Court established a to-that-point unheard of ‘right to work,’ and Wickard v. Filburn (1942), where a FDR-pressured Court upheld the government’s right to tell farmers to burn their crops under the interstate commerce clause, the justices were at their worst.
In the latter parts of the century, the Court was initially dominated by the liberal judicial activism of the Warren and early Burger Courts before a swath of Nixon and Reagan appointees set the stage for the heavily conservative Rehnquist and Roberts Courts. From the Griswold v. Connecticut (1965) declaration of a right to privacy discovered in the “penumbras of the constitution” to the controversial Roe v. Wade (1973) decision, the early liberal benches made a number of decisions that declared radical legal theories. The arguments differed sharply from the textualism of the original justices, an argument that called for explicit constitutional textual evidence of any right the justices could reference. Not unlike the conservative decision of Lochner, Roe and Griswold relied on implied—not explicitly defined—rights in the constitution. It was 15 years after Roe that Anthony Kennedy was appointed to the Court, where he would proceed to embody the judicial activist trend of the time and the rise of the Court to national prominence.
“Hail King Kennedy”
Kennedy was not Reagan’s first choice for the opening on the bench; the President’s first two choices, Robert Bork and Douglas Ginsburg, were defeated earlier because of ideological and cannabis issues, respectively. Now in his 25th year on the Court, Kennedy has been abandoned by fellow moderates Sandra Day O’Connor and remains the main swing vote on the Court. He was on the winning side in 91 percent of cases argued before the Court this term, including 20 of the 23 cases divided 5-4. Kennedy dissented only seven times on the year, the lowest on the Court. While he was on the losing side of last year’s Obamacare decision, voting to strike the law down in its entirety under the limited power of the commerce clause, Kennedy’s vote often determines the winning side.
Besides Kennedy, the remaining eight votes on the Court are often predictable; as such, the Court’s decisions are frequently left to Kennedy’s whims. He was the deciding vote in Planned Parenthood v. Casey (1992), a decision affirming the ultimate decision in Roe, and Bush v. Gore (2000), a black stain on the Court’s history. His Windsor decision came a decade after he wrote a majority opinion in Lawrence v. Texas (2003) that moved the Court’s position on gay marriage 180 degrees from the 18-year old precedent of Bowers v. Hardwick (1985). Kennedy deals with cases on a trial-by-trial basis and his legal philosophy can be either pragmatic or infuriatingly inconsistent, depending on the viewer.
However, it is not Kennedy’s legal philosophies or obscure verbiage—the justice is known for his oft-confusing prose—that make so many of his critics angry. The justice has time and again asserted the power of the Court. In doing so, he has given more and more power to the weight of his own decision. In Windsor, Kennedy’s majority opinion was full of contempt for the opinions of same-sex marriage opposition, despite the fact that 38 of the 50 states have not yet legalized same-sex marriage. Scalia calls out the swing justice in his dissent and notes that the Sacramento native straw mans those opposing same sex marriage with a moral pretentiousness assuming his is the only answer.
In this case, where both sides during oral argument essentially asked the justices only to maintain the opinion of the lower Court, Kennedy’s overreaching opinion goes far and beyond even what the plaintiff in the case expected. Much like the Voting Rights Act from the previous day, the Court handed down an opinion striking down legislation that had been enacted through the democratic American legislative process. National Review editor Mark Steyn ripped Kennedy for his legal overreach, ending his castigating column in the New York Post with a sarcastic “Hail King Kennedy”. In the Washington Post, Dana Milbank added, “it is an accident of politics but an accepted fact of life that, in this nation of 314 million people, the only person whose opinion counts most of the time is that of Kennedy.”
Democracy and Majority
Milbank’s choice of words, labeling Kennedy’s dual status as a judicial activist and swing vote as “an accident of politics,” brings up the question once again of whether judicial review is democratic and acceptable in situations where it strikes down the opinion of the population’s majority. Kennedy epitomizes this discussion with his position as the deciding vote in so many SCOTUS decisions that have a tremendous impact on the country
The argument that judicial review is conducive to democracy took form in the anti-populism of the late Ronald Dworkin, who argued that the opinion of the majority is not the end-all of democratic decision-making. Dworkin contended that the majoritarian conception of democracy is not as genuine as a comprehensive conception where everyone is given an equal part in decision-making without the dominating influence of the oppressive majority. He argued that judicial review promotes democratic values and provides a check on the opinion of the majority – a results-oriented argument. Kennedy is a proponent of these arguments, with his dedication to preserving liberty in the public and private spheres.
However, the idea of unelected and unaccountable judges defying the opinions of the majority doesn’t sit well with everybody. Jeremy Waldron, and more recently Steyn, has led the Dworkin critics who offer a more process-oriented argument. Waldron and Steyn contend that no matter the outcome of a judicial decision – whether it conveys democratic values or not – the process is undemocratic, placing the same decision-making power normally reserved for the masses in the hands of a few.
There are a lot of problems with Steyn’s “King Kennedy” argument. For one, Kennedy makes his vote in isolation. Although the rest of the justices’ votes are predictable, they are not made ahead of time. Kennedy does not cast his vote with absolute certainty that it will be the deciding factor. His position on the Court is simply an exacerbated case of the voter at the voting box in a contested district: if the election is decided by one vote, his vote still holds the same weight as the others in the majority.
Secondly, the Court is bound (in theory) by the constitution, and it is not unprecedented for legislators to override the Court’s decisions by installing federal constitutional amendments in their place (e.g. the civil rights amendments). Much like every other branch of government, there are checks on the power of the judicial branch. It also bears noting that the judicial branch is not the only non-democratically elected branch; much of the executive branch and, without the 12th amendment, only one-half of the legislative branch (the House of Representatives) would be. Majority rule is not an intellectual concept with deep American roots; both separation of powers and the contentious filibuster are quite antidemocratic measures under the majoritarian conception
However, that doesn’t mean that Kennedy is innocent of overreach. Multiple times the spectacled justice has been guilty of judicial activism. His Windsor decision features a reluctance to even acknowledge the opinions of the other side. His legal argument is a strong departure from his previous writings on the issue; stare decisis is nowhere to be seen. He abandons the federalism argument he has made in the past and cites an obscure desegregation case calling Bolling v. Sharpe to argue, as his former employer Earl Warren did in Bolling, that sometimes “discrimination may be so unjustifiable as to be violative of due process.” The combination due process and equal protection argument he makes has no intention of moving the legal needle slowly, and Kennedy leaves the door open for another case where the Court will rule on prohibitive same-sex marriage laws on a state basis.
Alexis de Tocqueville, who had a noted admiration for the United States political system, once said that “there is hardly a political question in the United States which does not sooner or later turn into a judicial one.” With the way that predominant social and political issues—abortion, gay marriage, affirmative action, voting discrimination, etc.—have been decided by the Court in recent years, de Tocqueville’s 19th century quote is a prescient realization the dominant nature of the Supreme Court in our current society.
Kennedy, and the Court as a whole, are not the monarchs that their critics paint them out to be, but the past 60 years of activism has dramatically changed the balance of power in the federal government. Whether judicial review is antidemocratic, an issue raised in response to Windsor, is less of an issue in a government with little commitment to the majoritarian conceptions of democracy. More concerning is the deterioration of stare decisis and increased fluidity and variance in the Court’s decisions.