The demise of Intrade.com (link no longer available) has deprived degenerates who will gamble on anything—and other degenerates who link to them—of the opportunity to wager on the outcome of Hollingsworth v. Perry, the case testing the constitutionality of California’s Proposition Eight, which banned same-sex marriage. But had it remained in operation, the odds likely would have run about even, with all eyes fixed on the great unknown: Justice Kennedy. Both facts—the even odds and the unknown on whom they rest—are problems. The even odds imply unpredictability in the law, and the unpredictability of Justice Kennedy’s jurisprudence, in turn, suggests a false complexity of constitutional jurisprudence that places it beyond the grasp of mortals and in the hands of a mysterious priesthood whose decisions require divination. However one wants the case resolved, it should not be decided like this.
Kennedy’s unpredictability makes him a media darling, the “swing” justice, which supplies a quality often missing in jurisprudential journalism: drama. Moreover, unpredictability suggests a pliability that is a virtue in the political branches, where mavericks are lionized and crossers of party lines are indispensable. Those willing to traverse such boundaries appear, above all, reasonable—a quality genuinely to be admired in political as in private life.
But jurisprudence requires different virtues. The jurist is unaccountable for exercises of prudential judgment. He or she is selected for different reasons: an expertise in the sweep and depth of the law and a commitment to certain principles in its application. These, to be sure, cannot be wholly mechanical, but they ought to be reasonably predictable. The law is supposed to be that.
Justice Kennedy’s jurisprudence is anything but. He is considered the swing vote in no fewer than four of this term’s most important cases. There is nothing wrong, of course, with being the swing vote per se to the extent it implies that Kennedy occupies a philosophical middle ground between the liberal and conservative wings of the Court—but the middle ground itself ought to be predictable. It is the capriciousness of the swing—whose movements are, to journalists, delightfully difficult to decipher—that is problematic. Two journalists recently concluded that Kennedy’s jurisprudence could be rendered sensible only in terms of his biography rather than according to judicial philosophy. If this is true, there is a reasonably self-evident word for it: narcissism. It is, in any case, not jurisprudence. Jurisprudence, whether liberal or conservative, relies on standards, and standards are predictable.
Kennedy’s jurisprudence has instead been praised as open-minded—again, an admirable quality, except that judges’ minds are supposed to be tethered not to abstract concepts of justice or natural right but rather to what is, after all, a relatively simple document. Conservatives and liberals ought to be able to agree on this much. Either the Constitution guarantees a right to same-sex marriage or it does not; it does not require the assistance of a priesthood to find out.
Our image of the law is increasingly otherwise, especially where the relative parsimony of the Constitution is concerned. What the document actually says, in essence, is how we are going to make decisions and what grounds those decisions will and will not cover: not, in the final analysis, so difficult to decrypt. Yet it has become shrouded in a false sense of mystery and intrigue, as though it requires not merely a legal education and a long apprenticeship with the law to grasp its contours but also exclusive access to a divine intent unavailable to the rest of us.
This is a problem for a republican order—in which it is essential that citizens be able to ascertain their obligations and rights with relative ease—and it masks a fact that professors of constitutional law possess a professional interest in concealing: the Constitution is not all that complex. Many issues Supreme Court justices confront out of the limelight—tax law, patent law and the like—are, but where the basic exercise of the power of judicial review is concerned, judges are not in the position of cave-dwellers grasping at shadows projected on a wall, nor are they supposed to be gazing heavenward at forms in a territory outside the cave where lesser men dare not roam.
The truth, instead, is that the words on the page are pretty simple. Yes, their application to circumstance gets complex, and judges need technical skill to resolve them. But—and here, perhaps, comes the lèse majesté—wisdom in judges is an overrated quality, except insofar as wisdom counsels them to know their place. The judicial craft, humbly understood, is far more workmanlike.
Wisdom, of course, requires judgment, and where judgment is involved, unpredictability follows. But where declaring the meaning of the law is concerned, a fine line separates unpredictability from caprice, and where justices sit, an even finer one divides wisdom from sanctimony. The best that can be said for Justice Kennedy’s jurisprudence is that he has one foot on each side.