Viewpoints on Justice Kennedy’s Career

Politico MagazIne has assessments of Justice Kennedy from “17 legal thinkers” at this link.  Here is an excerpt from mine:

The realization of human dignity and the importance of value pluralism are the themes that run most deeply to me in Kennedy’s opinions. He used the term “dignity” in his opinions more than any justice on the court since William J. Brennan. . . .

Kennedy also profoundly believed, whether instinctively or self-consciously, in value pluralism, along the lines of the great political thinker, Isaiah Berlin. As a value pluralist, he sought to honor and preserve, as much as possible, the competing and deep values often at stake in court cases—liberty, equality, tolerance, self-government—rather than to rush to an ultimate confrontation in which one of these values subordinates the other. Perhaps fittingly, his opinion just weeks ago in Masterpiece Cakeshop (in which he used the word “dignity” four times) exemplifies this sensibility perfectly: expressing great empathy and sensitivity to the interests of both religiously sincere believers and those of gay and lesbian people, he crafted a decision that respected both sides as much as possible. Skeptical of the use of race in public programs, he nonetheless pulled back from the brink of being a fifth vote for abolishing affirmative action completely, in recognition of the value that diversity and inclusion also play. In what I suspect was the most difficult vote of his career, he decided not to vote to overrule Roe v. Wade¸ which many had expected him to do, but to preserve its core while creating more space for those at odds with Roe to express their views through policy.

Kennedy also saw the court as a balancing force more generally in the political system, when it came to institutional cases as well as ones involving individual rights. He was what I have called a “boundary-enforcing” justice rather than one who cared primarily about bright-line rules and chasing principles all the way down to their analytical bottom. If he thought other institutions or actors had become extreme and gone “too far” in asserting their powers, he was willing to step in, through constitutional law, to assert the importance of a boundary on power—even if it was not possible to reduce the legal principle he applied to a bright-line rule that had clear necessary and sufficient criteria of application. . . . Decisions like these are often criticized by dissenting justices and others precisely because they establish a boundary but can’t be expressed in any simple bright-line legal rule. That did not deter Kennedy: If he thought institutions or powerful actors had gone too far in subordinating some set of important, constitutional values, he was willing to see the Constitution as pushing back—even if simple rules for a complex world were not always possible.



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