To many, that makes Kennedy both an undeniably powerful figure and a source of frustration. He’s neither fish nor fowl, neither a liberal nor a conservative, neither an originalist like Justice Scalia nor an avowed believer that the Constitution lives and breathes, like Justice Breyer.
So what the heck is Kennedy?
According to this review out in Friday’s WSJ, Purdue political-science professor Frank Colucci does a nice job defining “Justice Kennedy’s Jurisprudence” in his new book by the same name. According to the reviewer, Northwestern Law’s John McGinnis, “Mr. Colucci shows that [Kennedy’s] ideas are not inconsistent or dismissible as mere caprice or opportunism.”
The key to Justice Kennedy’s votes, Mr. Colucci says, is his moral reading of the Constitution: He sees the document as an unfolding story of ever greater individual liberty. Thus he opposes laws that abridge sexual freedom, including laws against homosexual conduct. If an originalist reading of the Constitution does not reveal such a liberty—relying on the received meaning of the Constitution’s words at the time they were written—Justice Kennedy’s moral reading does. But he is skeptical of race-conscious programs, too, because they treat applicants as members of a group rather than as individuals who possess the right to be free from group-based policies or rules.
. . .
Most valuably, Mr. Colucci shows Justice Kennedy’s judicial philosophy to be a deeply rooted one and not, as one might suspect, the result of varied decisions that require a casuist or law professor to make coherent. He unearths a speech from 1986 in which Justice Kennedy (then an appeals-court judge) criticized Bowers v. Hardwick, a case in which the Supreme Court upheld a conviction for sodomy. At the time the judge did not argue, as others had, that the decision violated the right to privacy minted more than a decade before in Roe v. Wade. He argued instead that the liberty interests of gay Americans had been breached. In 2003, the court overruled Bowers v. Hardwick, and Justice Kennedy wrote the majority opinion using the rhetoric of liberty rather than privacy.
Cool. Okay, we say. That’s actually very helpful: It’s all about “Liberty” for Justice Kennedy. But why that ideal over others, like equality? On this front, writes McGinnis, Colucci’s explanation is less satisfying.
If Mr. Colucci succeeds wonderfully in explaining Justice Kennedy, he succeeds less well in justifying him. The difficulty with moral readings of the Constitution is that, most of the time, the moral outlook that plays such a decisive role is grounded in a particular justice’s personal experience and convictions or in his particular understanding of American life and history. Other moral readings of the Constitution could legitimately give pride of place to equality, or social solidarity, or national security, instead of liberty. If liberty is what most needs preserving, as Justice Kennedy seems to believe, then the better course is simply to preserve the original meaning of the Constitution, where we will find the freedoms we have chosen for ourselves.