The Breakfast Table

How Anthony Kennedy became a progressive on race.

Entry 4: How Anthony Kennedy became a progressive on race.

U.S. Associate Supreme Court Justice Anthony Kennedy
Justice Anthony Kennedy at the Supreme Court in Washington on June 1.

Jonathan Ernst/Reuters

Dahlia, Pam, Walter, Dick—

Pam and Walter are both right, of course, that this term has no bona fide blockbusters. That’s certainly a drag for avid court-watchers like us, but perhaps it’s also a gift to the country. As you said, Walter, the Supreme Court is fundamentally undemocratic; if it issues too many blockbusters, Americans could get counter-majoritarian fatigue and question whether judicial review has displaced representative lawmaking. This term, the justices seemed to select modest cases that lent themselves to compromise and narrow holdings—likely because they lacked a ninth, tie-breaking vote. As a result, the court has been unusually careful, cooperative, and deferential toward the elected branches. Boosters of a permanent eight-member court may have had a point.

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Pam, you pointed out that the justices also zeroed in on cases that “sear the conscience” with their brazen injustice. I’d like to add one case to the conscience-searing list: Peña-Rodriguez v. Colorado. In Peña-Rodriguez, a Hispanic criminal defendant discovered that one juror assessing his case had tainted deliberations with racial bias. Unfortunately, this information only came to light after the jury had voted to convict. The defendant wanted two jurors who witnessed the racist comments to testify about them so the trial court could set aside the verdict and grant a new trial. But Colorado prevents jurors from testifying about deliberations in a proceeding that questions the validity of their verdict. The Colorado Supreme Court decided that this “no-impeachment rule” did not violate the Sixth Amendment right to trial by “an impartial jury.”

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The Supreme Court disagreed, ruling that the no-impeachment rule must give way when a juror reveals that racial animus may have infected deliberations. In an eloquent opinion by Justice Anthony Kennedy, the court denounced racially biased juries, writing: “It must become the heritage of our Nation to rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons.” Sadly, only four other justices agreed with that sentiment: Chief Justice John Roberts dissented, along with Justices Clarence Thomas and Samuel Alito, insisting that the abstract principle of finality should trump a defendant’s right to a fair trial. Their consciences may need a tune-up.

Not Kennedy’s, though. Peña-Rodriguez contained the justice’s most sophisticated endorsement of racial equality yet, proving that his insightful decision in last term’s affirmative action case was no fluke. Speaking for the court, Kennedy adopted the theory—most famously articulated by Akhil Reed Amar—that, because the Bill of Rights applies to the states through the 14th Amendment, it must be interpreted in light of that amendment’s “central purpose”: the eradication of racial discrimination. Under this theory, the Sixth Amendment’s guarantee of an impartial jury should be read in conjunction with the 14th Amendment’s effort “to purge racial prejudice from the administration of justice.” Taken together, Kennedy explained, both constitutional commands make clear that racism in the jury room is simply intolerable.

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Kennedy’s Peña-Rodriguez opinion concludes that “our legal system” must always be “coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy.” This line of reasoning runs throughout the justice’s best opinions, and it neatly captures his late-career philosophy: The justice has largely jettisoned rigid formalism in favor of a more empathetic mode of inquiry, one that values contemporary standards of decency over hidebound literalism. Dahlia, I agree that both Kennedy and the chief justice have drifted leftward on race—but Kennedy has obviously outpaced Roberts, inching past the center toward the progressive bloc on the court. I’d like to believe both justices are reacting to the gruesome bigotry that our president has cultivated and dragged into the spotlight. Whether or not that’s the case, let’s hope Kennedy stays on the court for long enough to ensure that his commendable legacy is not steamrolled by his successor.

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