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The Kennedy Succession

Justice Anthony Kennedy’s judicial record will go down in history not as the jurisprudence of dignity but rather as the jurisprudence of whim. The suspenseful unpredictability that made him so intriguing to journalism was exactly why he was unsuitable for the bench. He was, as Titus Techera aptly puts it, America’s philosopher-king.

But as conservatives consider his replacement, it would be well to recall that the problem with Kennedy was not merely the nature of his philosophy but also the fact of his kingship. The royalty conferred by judicial robes—which is antithetical to such values as self-government, moderation and accountability—is wholly unconservative, and it is not confined to Kennedy. Substantial forces on the legal right embrace the royalty even as they object to Kennedy’s philosophy: Recalling Tocqueville’s admonition that “[d]emocratic peoples often hate the agents of the central power; but they always love this power itself,” theorists of judicial engagement such as Randy Barnett and Roger Pilon might prefer that judicial authority be exercised differently, but they embrace the authority itself.

There is consensus that Kennedy’s swing vote should give way to a conservative one. That is well and good, but it does not answer the question of what a conservative judge is, or, better put, what a conservative judge does. Genuine judicial conservatism would beware of outcome-based jurisprudence and instead hew to a philosophy that rejects judicial kingship altogether. Rather than relying solely on judges to limit their own power, judicial conservatism would subject them to the normal mechanisms of the separation of powers, according to which branch limits branch.

To see why, one need look no further than the precedent many originalists are most eager for Kennedy’s successor to undo: Roe v. Wade. It is worth asking precisely what made Roe judicially unconservative. The answer is not the prevalence of abortion, which is a vital question of political conservatism, but rather the mechanism by which it was achieved.

Roe terminated processes of self-government that were, not incidentally, liberalizing abortion laws. More important, it encouraged a rush to mutual extremes: a pro-choice movement that would permit abortion always and everywhere and a pro-life counterpart that would ban it altogether. Roe licensed these legislative extremes by stringing up a safety net beneath them. Judges would decide what abortion laws were acceptable, so legislators could posture at will.

There was neither kingly permission nor, importantly, political need for the kind of compromise and moderation that could, in the absence of judicial interference, have resolved the issue so it would not distort and convulse American politics. Mary Ann Glendon, whose pro-life credentials are impeccable, has noted that abortion laws in countries like France, which is hardly a hotbed of sexual repression, permit it early in gestation with a cascading degree of restrictions matched by child care and other supports for parents and children.

That is not to say there are not differing opinions on abortion in Europe or that they are not intense. But they do not determine political affiliation because, in the absence of judicial superintendence, the natural intensity of the issue has been alleviated by moderation and compromise. By contrast, the rigidity of American abortion politics—in which increasingly all Democrats are pro-choice, all Republicans are pro-life, and both feel so intensely about the issue that they affiliate based on it regardless of their differences on taxes, defense, social welfare or other issues—undermines Federalist 10’s assumption that majorities and minorities in American politics would shift based on the issue under consideration.

Indeed, the legislators so eager for the overturning of Roe may find their lives more difficult without its training wheels. Their decisions will have consequences they do not suffer today. Legislators will have to legislate and be accountable for it. Pro-choice and pro-life activists will similarly be pushed toward each other rather than toward the unaccountable extremes.

Its undermining of self-government and not merely its particular policy consequences is what makes Roe unconservative. It disallowed republicanism and consequently licensed legislative extremism without extracting a price in accountability. A conservative judge will be less interested in policy outcomes than in allocating space to self-government and allowing—indeed, compelling—legislators to be responsible for themselves rather than turning to the bench for relief.

In the age of Robert Bork’s first martyrdom—which is to say he was martyred once by the Senate and again by libertarians who now excoriate him—conservatives held this modest view of the judicial role. But the libertarian turn in judicial philosophy welcomes the kingly power of judges even as it hopes for different outcomes. The emphasis there should be placed on “hopes,” for that is all the libertarian turn can do. Judges are not exempt from the normal human temptation to abuse power that has historically concerned conservatives, so to make them kings on the assumption they will properly exercise their royal authority is a bad bargain.

Regardless of the apparent short-term benefits, replacing a capricious judge like Kennedy with one who is equally focused on political outcomes but who happens, allegedly, to favor more conservative ones is equally destructive. A truly conservative replacement for Kennedy will be an originalist by virtue of maintaining the standard of The Federalist—the best guide to original public meaning—which is that judges should only void laws that are at “irreconcilable variance” with the Constitution. That suggests a duty of judges to attempt a reconciliation by reading statutes charitably.

Other conservative values ensue from such a duty, accountability and moderation foremost among them. Genuine self-government entails both. Judicial kingship, by contrast—whether liberal, libertarian or, as in Kennedy’s case, capricious—tends inherently toward outcome-based jurisprudence because it tempts judges, especially the vaunted “swing” judge, with the power of a vote in conference to impose policies on the nation.

Americans have been disconcertingly eager to allow judges to relieve the people of what Tocqueville called “the trouble to think and the difficulty of living.” Judicial kingship is, in this sense, a warped respite from responsibility: The justices will tell us what is right, so we need not concern ourselves with difficult questions. Such lassitude is utterly antithetical to conservatism, which assumes the people, through their elected representatives, will not only desire self-government but engage in the actual work of it.

Those so engaged, without the supervision of judicial masters, will be forced toward moderation. They will be drawn from their natural isolation into the political realm, nobly understood. The legacy of Justice Kennedy has been to unburden Americans and their legislators of such troubles. A truly conservative successor will insist that they take up the work of citizenship once more.

Reader Discussion

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on July 03, 2018 at 11:26:27 am

James Phillips, in yesterday's The Public Discourse*, makes a similar and persuasive admonition regarding the vital necessity of selecting a nominee whose judicial character is "process based" vs. "outcome based".

* http://www.thepublicdiscourse.com/2018/07/22019/

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Paul Binotto
on July 03, 2018 at 13:24:27 pm

Wow there is a lot I disagree with here. Lets start with the "The royalty conferred by judicial robes—which is antithetical to such values as self-government, moderation and accountability—is wholly unconservative, and it is not confined to Kennedy." The fact of the mater is the Judicial Power is a part of the sovereign power of our government, and such a power is conservative in the sense of upholding the natural rights to life, liberty and property that are the foundation of any conservative government. The so called "political branches" have incentives to take private property for their own political ends and to scapegoat unfavored minorities into the blame for what the political classes cause (taking their life or liberty in the process). Properly understood, the judicial power is a part of the sovereign power, and it does good in this world. And I would praise Randy Barnett and Roger Pilon for calling on judges to use the power the Constitution has given them properly.

I do agree that a good judge should "beware of outcome-based jurisprudence." But I would not reject the power of judges to strike down unconstitutional statutes, there lies the path to despotism and tyranny.

I agree that we should not rely upon judges to "limit their own power" and instead should subject them to " the normal mechanisms of the separation of powers." The proper way to do this is through the Constitution's clause on limiting the jurisdiction of the Supreme Court. Should Congress and the President disagree strongly with the Supreme Court's interpretation of the Constitution in a given area, they have the power to limit the Court's jurisdiction (along with all other federal courts), and return that power back to the state supreme courts to decide. Congress and the President do not get to decide what the Constitution means, but they can return the power back to the states if they choose.

I mostly agree with you on Roe, far more of the decision making in this case should have been left to the states to decide. But judges should only make that determination if the Constitution doesn't have a requirement concerning abortion. If the Constitution does, then it shouldn't be left to the political branches because the people (by a supermajority) had already decided that issue. That is the way proper judging should occur.

I agree that between two equally plausible interpretations of a statute the Court should pick the constitutional one over the unconstitutional one. But this MUST be the last step in the process after there are two equally plausible readings of the statute. The problem in NFIB v Sebelius is that the Chief Justice said that there was one interpretation that was "the most straightforward reading" of the statute, but rather than that, the court re-interpreted the statute to the less likely interpretation because that interpretation wasn't unconstitutional. This is judicial activism by using judicial restraint to do so. Judges should not be rewriting statutes, even if doing so allows the statute to be constitutional when it wouldn't be otherwise. That is one of the problems with blind deference to the "political branches." First the "the most straightforward reading" of the statute should be determined, then it should be applied to the Constitution to see if it is constitutional, not the other way around even if doing so is "reading statutes charitably."

I disagree, as I said, with outcome based judging. I think that is always wrong and for the reasons you said (among others).

I believe strongly what Thomas Jefferson said on the judiciary (https://founders.archives.gov/documents/Jefferson/98-01-02-1540 ): "You seem... to consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indeed and one which would place us under the despotism of an Oligarchy. Our judges are as honest as other men, and not more so. they have, with others, the same passions for party, for power, and the privileges of their corps. their maxim is ‘boni judicis est ampliare jurisdictionim,’ [good justice is broad jurisdiction] and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective countroul. The constitution has erected no such single tribunal knowing that, to whatever hands confided, with the corrputions of time & party it’s members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."

I do NOT consider judges "the ultimate arbiters of all constitutional questions." They can decide such questions only for the judicial branch of our government. The executive and legislative branches have various powers to limit the Court, should they so choose to do so (and I encourage them to use those powers where they believe the Court has gone wrong). But within the scope of what they have (by the political branches) been given jurisdiction over, they have a duty to interpret and apply the constitution the best that they can. That is why the Constitution requires them to swear an oath to do so. A judge that is really ready, able, and willing to do that is what we want in a justice.

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Devin Watkins
on July 03, 2018 at 14:42:19 pm

“More important, it encouraged a rush to mutual extremes.”

In regards to personhood, one need look no further than the 3/4 TH Compromise to recognize that being a son or daughter of a human person, is not a matter of degree. From the moment a son or daughter of a human person is created and brought into being, at their conception, that son or daughter of a human person is wholly a human person, existing in Time and Space. It is not possible for a son or daughter of a human person to exist in Time and Space and not be a human person, which is why our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness is endowed to us from God at the moment of our creation, which is to the same moment in Time and Space, when we are born:

https://www.youtube.com/watch?v=CNgwsT295G8

The fact is, when you compromise truth, you will always end in error, and the degree of error in Roe v. Wade cannot be more extreme. In fact, during Oral Arguments, when contemplating the definition of human person, Justice Blackmun, at first claimed the definition to be “naturalized citizen”, which begs the question-

Since it is true that a human person can only conceive a human person, and thus every son or daughter of a human person, from the moment of conception, being wholly human, can only be a human person, we can know through both Faith and Reason, that Roe V. Wade is unconstitutional, due to an extreme error in both Substantive and Procedural Due Process Law.

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Nancy
on July 03, 2018 at 14:55:27 pm

That should read: It is not possible for a son or daughter of a human person to exist in Time and Space and not be a human person, which is why our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness is endowed to us from God at the moment of our creation, which is not the same moment in Time and Space, when we are born:

YouTube H/T LifeSiteNews

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Nancy
on July 03, 2018 at 17:00:58 pm

Devin:

"I do NOT consider judges “the ultimate arbiters of all constitutional questions.”"

YET, you go on (by implication, or better still, omission) to do just that. By "allowing' that the political branches may limit jurisdiction, you would suppose that a) this provides a proper hedge against Judicial abuse (some meit in that, BTW) and b) that the exercise of such tactical maneuverings by the political branches is ALL that is permissible under COTUS. Not quite so. Even a cursory reading of the Federalist should be sufficient to dispel one of that assumption. It is constitutionally proper for ALL Branches to make determinations as to what is constitutional - not just the Judicial.

While Art III vests the Judicial power in "one Supreme court", it does not preclude, or absolve the other Branches from THEIR constitutional duty to determine what is / is not constitutional. Tactical maneuvers such as you advocate, and even impeachment of errant judges, do not cover the breadth of the political branches responsibility or power to determine constitutionality. Let us not accept the *wisdom* of the Nitwit from Napa, N. Pelosi who would have us believe that the consideration of "constitutionality" is NOT within the purview of wither the Legislative or the Executive. "No, Nancy, we are not kidding YOU." What exact text in COTUS proscribes the political branches from dissenting with a SCOTUS decision? what prevents them from *instructing* SCOTUS that the Black Robes are wrong - "Try again." I am not being facetious!

For too long, the political branches have deferred to the Judicial. For almost a century and a half, it appeared that there was little danger in such deference. Over the last 60 years or so, we observe that the Judicial has arrogated to itself all manner of *POLITICAL* / LEGISLATIVE authorities not within their constitutional quiver. Perhaps, it is time for the Judicial to receive proper instruction in the means, manner and mechanism of republican SELF governance.

Your advocacy of judicial engagement ONLY furthers the arrogation of constitutional power by the Judicial and away from the political branches by expecting, if not DEMANDING (a la Barnett) that Judges must consider all cases from a "presumption of liberty". curiously, it is never quite made explicit just what this "liberty' consists of, its breadth and depth. For that once again, we will DEFER to the *wisdom* of our Black Robed protectors.

We have previously discussed the value of "the spirit of the DOI". Yes, american governance ought to reflect that "spirit." BUT, it is the Legislative which ought, no MUST, be the expositor of that Spirit - not the Judicial - as it is only the Legislative which is CONSTITUTIONALLY charged / empowered with assessing and crafting the appropriate compromises between that spirit and good public order and governance.

BTW: I had asked Richard Reinsch to arrange a debate between You and Barnett on this specific topic after a recent Law Article by you two. I renew that request.

In this case, i cast my lot with Greg Weiner. Let the Political Branches exercise the Legislative Power and ONLY the Political Branches.

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gabe
on July 03, 2018 at 18:11:46 pm

I actually agree with you. "it does not preclude, or absolve the other Branches from THEIR constitutional duty to determine what is / is not constitutional. " That is absolutely true. Congress and the President have various powers to limit the jurisdiction of the Court, but this isn't the entire extent of their responsibility to interpret the Constitution. Additionally, Congress should not pass any statute it believes is unconstitutional (and repeal all those it thinks is unconstitutional), and the President shouldn't sign, nor enforce, any statute he believes is unconstitutional. All of this is done regardless of what the Supreme Court says the Constitution means.

What is the exact topic of the debate between me and Barnett? (or did you mean Greg?)

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Devin Watkins
on July 03, 2018 at 18:56:31 pm

Yup - I normally am in full agreement with Devin, but I also raised an eyebrow to his assertion seemingly to reserve Constitutional interpretation solely within the purview of the Judicial; my gut tells me Devin simply mischaracterized his intended position.

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Paul Binotto
on July 03, 2018 at 20:39:59 pm

That isn't what I meant at all.

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Devin Watkins
on July 03, 2018 at 20:52:19 pm

As I said, I was sure you intended other than as construed.

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Paul Binotto
on July 04, 2018 at 08:23:59 am

Devin:

Yep, excuse my wording. I intended for a debate between you / Barnett and perhaps Greg, Mark Pulliam on "engagement" and as a focal point, the notion of "the presumption of liberty" (or as I refer to it, the *in-spiriting* of the DOI into republican governance.
Where should this spirit, this presumption be operative? - in the Judicial OR in the Legislative and what are the effects of each choice AND the implications for / upon government by consent.

sorry for such a brief statement on the topic but i do volunteer work on Wednesdays and must depart.

take care
gabe

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gabe
on July 04, 2018 at 10:03:17 am

To me, courts have since the beginning of the country had a presumption of liberty. It was called the "rule of lenity" Chief Justice John Marshal wrote in United States v. Wiltberger (1820):

"The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle, that the power of punishment is vested in the legislative, not in the judicial department."

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Devin Watkins
on July 05, 2018 at 13:42:36 pm

I was in the court room when Justice Kennedy read the conservative dissent to Justice Robert's opinion rewriting and then upholding Obamacare. When Justice Kennedy read the portion of dissent lamenting the damage to our system of ordered liberty, he actually became emotional and tears formed in his eyes. Despite his inconsistent opinions, he was still genuinely passionate about our Constitution and the American experiment.

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Fahagen

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.