This is part of a series of articles about how Justice Anthony Kennedy’s successor will change specific areas of the law.
Justice Anthony Kennedy was an anti-originalist. In many important cases, the retiring justice explicitly rejected the importance of the Constitution’s original meaning. Kennedy consistently argued that modern values, not ancient ones, were the important building blocks of constitutional interpretation. He will be sorely missed because, although all the justices decide cases based on their own modern sensibilities, Kennedy was one of the few, left or right, to openly admit it. The judge nominated to be his replacement, Judge Brett Kavanaugh, who many believe to be an originalist, will almost certainly not be as honest.
Justice Kennedy authored the only four pro-gays rights opinions in Supreme Court history. In Lawrence v. Texas, which invalidated a Texas anti-sodomy law, Kennedy could not have more pointedly rejected originalism:
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
Although Kennedy might be most famous for his individual rights opinions in matters of abortion, privacy, speech, gay rights, and religious liberty—areas where he often rejected originalism as clearly as he did in Lawrence—he applied the same anti-originalist posture to important other cases as well. One of the most controversial legal issues of the 1990s was whether states could impose term limits on members of Congress. When that issue finally reached the Supreme Court, Justice Kennedy joined the four liberals to say that term limits were unconstitutional. The majority and dissenting opinions together spent more than 100 pages and 91 footnotes arguing about text, history, and precedent, reaching exactly opposite conclusions.
Kennedy’s concurring opinion eschewed the charade that a right answer could be found in the indeterminate materials of the past. Although he did discuss some ratification history, his swing vote was mostly based on his transparent belief that the United States is better off with one, uniform Congress where each member is selected in the same manner. He thought it crucially important that the federal government have a distinct national identity. This conclusion may be right or wrong, but Kennedy did not hide his value judgments behind decisions that involved contested historical accounts.
Kennedy did not pretend to be an originalist either when he was nominated by Ronald Reagan in 1987. During his confirmation hearing, Justice Kennedy told the world exactly what kind of judge he was going to be. When asked about the judge’s job to protect personal freedom, his answers clearly foreshadowed the libertarian impulses that drove his decision-making:
I think that the concept of liberty in the due process clause is quite expansive, quite sufficient, to protect the values of privacy that Americans legitimately think are part of their constitutional heritage. …
[The idea of liberty] is central to our American tradition. It’s central to the idea of the rule of law. And that is 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.
Each man and woman has the freedom and the capacity to develop to his or her own potential. That is somewhat different than the Constitution states it, but I think all Americans believe that. And I think that has a strong and a very significant pull … on the courts.
During his 30-year career on the bench, Kennedy applied these non-originalist principles in a manner that made both the left and the right angry. He ruled for gay rights, abortion rights, and free speech rights while also voting against affirmative action in all but his very last encounter with that problem, and in favor of corporate rights, states’ rights, and against the rights of criminal defendants. He voted independently, honestly, and aggressively, and rarely did he try to justify his decisions by relying on the types of contested historical materials that often misleadingly punctuate the opinions of conservative justices.
Will the Supreme Court become more originalist if the Senate confirms Judge Kavanaugh? No doubt Judge Kavanaugh considers himself an originalist. Smart scholars, such as Yale Law professor Akhil Amar, certainly think he is one. In reality, if Kavanaugh in fact ends up voting in an originalist fashion, then he will be the only justice on the court to do so.
The Supreme Court is not now and never has been originalist in any meaningful sense. Although Justices Clarence Thomas and Neil Gorsuch talk the talk of originalism (as did Justice Antonin Scalia when he was alive), Thomas has been voting in a non-originalist manner for almost three decades. Justice Scalia engaged in the same kind of non-originalist judicial aggression during his long tenure on the court. Although Gorsuch’s record is quite new, over his first term and a half, he joined with Thomas to strike down five state laws without making any substantive originalist arguments for doing so. The reality is that no modern justice has allowed originalist principles to block desired political outcomes, and it is extremely unlikely Judge Kavanaugh will break that streak. His dissenting vote in an important Second Amendment case, where he argued that Americans have a constitutional right to own semi-automatic rifles, suggests he will vote more like a conservative than an originalist. There is virtually no historical evidence to suggest the Second Amendment’s original meaning was that Americans could own any firearms, no matter how dangerous.
Justice Kennedy’s retirement will likely not make the court any more originalist, but it will make it less honest. Left, right, or center, his refreshing transparency will not be matched by any other justice on our country’s highest court.