First Among Equals (7 page)

Justice Kennedy's assiduous focus on the justices and the constitutional case law of the 1930s signaled much more than a commonly shared judicial interest in constitutional history. Time and again in the course of his opinions, he focuses extensively on the Court's case law. He reasons and analogizes from what is already found in the Court's jurisprudence. He distinguishes, carefully, cases handed down by prior Courts. Kennedy is, in short, a common-law constitutionalist. He appears most offended when the Court departs from what he sees as the logic and thrust of its prior opinions. On the last day of the 2000 term, the justice, in a rare display of wounded feelings, railed against the majority opinion in an abortion-related free-speech case
(Hill v. Colorado).
From the bench, he lamented as “profoundly disappointing” the Court's rejection of pro-life activists’ challenge to a Colorado statute limiting their ability to engage in leafleting and sidewalk counseling outside abortion clinics. Kennedy spoke with considerable authority, for he has fashioned himself—in the manner of the common law—as a champion of First Amendment freedoms. A vigorous free-speech advocate, he has built upon the Court's growing body of free-speech precedent. Moved mainly by Kennedy's free-speech opinions, Burt Neuborne, former litigation director of the ACLU and law professor at New York University, has pronounced the current Supreme Court “the most profoundly pro-First Amendment Court in the nation's history.”

In the 2000 free-speech case, Justice Kennedy's pristine common-law methodology was abundantly evident as he moved through the lengthy set of cases involving leafleting and pamphleteering. For him, the Colorado statute—making it a crime to “knowingly approach another person within eight feet of such person … for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person in the public way or sidewalk area”—was manifestly unconstitutional. The majority, in contrast, emphasized that the statute was narrow and confined, leaving open ample channels of communication. Justice Kennedy was unimpressed. He began his twenty-nine-page dissent this way: “The Court's holding contradicts more than a half-century of well-established First Amendment principles.” The Court, Kennedy said, was doing something for the first time—and that's presumptively suspect in the common-law constitutional tradition. “For the first time, the Court approves a law which bars a private citizen from passing a message, in a peaceful manner and on a profound moral issue, to a fellow citizen on a public sidewalk.” He was outraged. “To say that one citizen can approach another to ask the time or the weather forecast or the directions to Main Street but not to initiate discussion on one of the most basic moral and political issues in all of contemporary discourse, a question touching profound ideas in philosophy and theology, is an astonishing view of the First Amendment.” The Court's approach, he said, “is an affront to First Amendment teachings.” “Teachings,” of course, meant the Court's prior decisions.

To be sure, as elsewhere in the law, nuance counts. And Justice Kennedy, in particular, seems to have a “thumb on the scales” in First Amendment cases. He tends, strongly, to err on the side of promoting First Amendment values. Still and all, much of the Court's modern case law is squarely on the side of a libertarian approach to First Amendment issues.

In the abortion-speech case more specifically, however, Justice Kennedy seemed to be speaking in particular to the most influential of the common-law constitutionalists, Justice Sandra Day O'Connor. So frequently over the years they had voted together, including in some of the watershed moments when the Court faced thorny questions regarding abortion and school prayer. The two westerners, both Stanford alums, were kindred spirits. Both stood solidly on middle ground, in the spirit of Justice Lewis Powell, Jr. But in the late 1990s, the O'Connor-Kennedy voting relationship began to fray. And Justice Kennedy seemed to take umbrage at the growing separation.

Justice O'Connor had teamed up with someone new— an appointee of President Clinton. On several large issues (with federalism a notable exception), Justice O'Connor and Justice Stephen Breyer were solidly together. Their growing judicial kinship was evidenced most provocatively on partial-birth abortion, the most controversial social-issues case of recent years
(Stenburg v. Carhart
[2000]). Along with thirty other states, Nebraska had outlawed a particularly grisly abortion method, one carried out by delivery (partial or otherwise) of the fetus into the vagina before procedures too gruesome to describe in detail (but fully described in Justice Breyer's majority opinion and in Justice Thomas's dissent) were employed to terminate life. In the face of disapproval of the particular procedure (called D&X) by various medical authorities, the Court still overturned Nebraska's ban on this procedure. The states were to be severely limited in their regulation of specific medical procedures used in the abortion context. Justice Kennedy was especially dismayed. The decision departed from the “common law” of the Constitution. Specifically, Kennedy viewed the decision as inconsistent with the carefully wrought compromise opinion in
Planned Parenthood v. Casey,
the pivotal 1992 case reaffirming the Court's landmark decision in Roe
v. Wade
but permitting the states to impose regulations on the procedure, such as parental notification.

To Kennedy, O'Connor had betrayed the
Casey
compromise constructed by the O'Connor-Kennedy-Souter trio. But what lay behind the wounds, it seems, was a different calibration of common-law constitutionalism. The two centrists, O'Connor and Kennedy, were not marching to the beat of the same drummer on this watershed issue. To the contrary, Justice O'Connor was a step (or two) in front. She proved to be more of an innovator within the traditions of common-law constitutionalism.

She is the most influential and powerful woman in America. Growing up on the Lazy B ranch in Arizona, Sandra Day O'Connor developed a fiercely independent bent of mind. At home with cowboys or ambassadors, and the Court's most prominent member of the Washington social scene, Justice O'Connor is the Court's pivotal member. As she goes, more frequently than not, so goes the Court.

Coupled with her fierce independence, Justice O'Connor's background as a state court judge in Arizona, entrusted directly with the development of the common law in the manner described in Justice Scalia's
A Matter of Interpretation,
perhaps contributed to her greater flexibility in interpreting the Court's prior cases, and in particular in fashioning the
Casey
compromise on
Roe v. Wade.
She was accustomed to the common-law tradition of finding a better rule in the analysis of legal problems. In other arenas, she had shown a flexible willingness to rewrite statutes in order to save them. She was willing to step back when the Court entered new arenas and proceed with what seemed to other members of the Court extreme caution. She was flexible, as common-law creators tend to be. She positioned herself in the center and articulated a theory or principle in her own way. Most prominently in this respect, Justice O'Connor displayed the quality of judicial creativity on highly charged church-state issues as well as abortion, fashioning entirely new doctrine. The Court, as we will see, has struggled for consistency in its decisions under the Establishment Clause of the First Amendment prohibiting laws “respecting an establishment of religion.” The Court's work over the years has been largely a search for coherent, consistent doctrine. Justice O'Connor proved highly creative in this sensitive area of church-state relations. She created a new concept or principle in the law: the idea of “endorsement.” That is, in her view, a violation of the Establishment Clause occurs when government “endorses” religion or religious practice. What did this mean? O'Connor stated the idea at a high level of generality. Government could not make one's religious beliefs, or lack thereof, relevant to one's standing in the political community. To do so would effect an “endorsement” of religion (or, conversely, irreligion).

What about the nation's motto, “In God We Trust”? Is this an endorsement of religion? Surely it is, many would say. The nation, speaking through its government in a statute, says that it is placing its trust not in the people, or the Constitution framed by “We the People,” but in God. Others would say the national motto is merely an acknowledgment of our history and tradition, not rising to the level of an endorsement.

Ultimately, we are left to guess as to the reach of the undefined “endorsement” principle. Tellingly, the endorsement test was not drawn from prior case law; it was, rather, Justice O'Connor's “take” on the values that un-dergird the Establishment Clause and the many cases over the decades interpreting the meaning of that pivotal part of the First Amendment. She was seeking, as she put it, to
clarify
the law. She set forth her view to this effect in a separate, concurring opinion upholding the practice of including a creche in a Christmastime display on city property in Pawtucket, Rhode Island. That is, her vote was a “majority” vote, but she wrote a separate opinion setting forth the different way that she examined the Establishment Clause issue in the case. From that modest beginning in a single case, with the Court struggling over the constitutionality of the creche, the concept of endorsement was incorporated into the body of First Amendment law. After all, her centrist vote was of critical importance on a closely divided Court. Her vote, and frequently that of Justice Anthony Kennedy, proved decisive.

And thus, a centrist, common-law constitutionalist from Arizona, with little prior judicial experience before arriving in Washington, became the Court's most powerful member. Her power from the middle has never been more evident than in the Court's recent affirmative action decisions, where, having previously joined majorities requiring strict scrutiny of racial preferences, she became the critical fifth vote on the Court for the proposition that diversity in the classroom is a compelling governmental interest that can withhstand strict scrutiny analysis. Her path to power was simple. Step one: positioning herself at the Court's center—avoiding strict doctrines or rigid, bright-line principles and thus leaving some running room for later cases. That meant, necessarily, rejecting textualism. Step two: being ready and willing to create new law. She was, in short, farther along the common-law constitutionalism spectrum than Justice Kennedy.

In so doing, she moved farther away from the Scalia school, thus triggering some of Justice Scalia's sharpest condemnatory language. He found doctrinal flexibility to be aggravating. But it was not just the conservatives who were upset. At other critical times, as in the June 2000 partial-birth abortion case, she also left her fellow centrist Justice Kennedy suffering in dissent as she engaged in common-law creativity. Just as in the Establishment Clause arena, so too in abortion. Justice O'Connor crafted what became the law of the land. She had fashioned a concept—now governing the law of abortion—dubbed “undue burden.” That is, the state may regulate, but not prohibit (the “core holding” of
Roe v. Wade
), pre-viability abortions so long as those regulatory controls do not constitute an “undue burden” on the woman's right to choose. The origins of O'Connor's test were entirely unclear. A doctrine by the same name, undue burden, existed in a completely unrelated arena: the law of the Commerce Clause. That sort of test, which asks, for example, whether states could impose airbags requirements and the like, seemed far afield from abortion.

Justice O'Connor never supplied a detailed explanation of the test's origins. She did proceed, as time went on, to elucidate what the phrase meant, using such terms as ,
substantial obstacle.
But this was legal jargon. It was an abstract notion, calling for judgment. The question, continually recurring in the abortion cases, is what constitutes an undue burden? No one knows in advance what the justice(s) will decide.

The result of a particular challenge—yes, it's an undue burden or no, it's not—depends entirely on judicial judgment. On the spectrum of decision-making, this is at the polar opposite of relying on the text and structure or history of the Constitution. What really decides the case is the reasoned judgment of the justice. This is upsetting to adherents of Justice Scalia's
A Matter of Interpretation.
To make matters worse for the textualists, that judgment of the justice(s) is not necessarily guided by prior law. This is the creative dimension of Justice O'Connor's common-law constitutionalism. Rather than looking to the wisdom of generations of judges, as a common-law judge would do in weaving the law of contract or tort, in the Justice O'Connor approach
it is the judgment of the then sitting justice that counts.
There is little, and perhaps no, highly developed body of law to guide the judge in his or her analysis. The judge herself is, rather, the reasoned arbiter of competing interests.

This process of judging tends naturally to be highly subjective. And a justice's use of subjective judgment in construing the Constitution maximizes the federal judiciary's power at the (potential) expense of the political branches (or the states).

This way of approaching the job of interpreting the Constitution alarms the Scalia school. To the textualist justice, this judgment-oriented approach to constitutional interpretation represents raw judicial power, guided essentially by the individual justice's individualistic sense of right and wrong. To be sure, the justice may have eminently sound judgment; indeed, the judge (or justice) may be widely viewed as a person of great wisdom and high integrity. Her views may be firmly rooted in widely shared moral and ethical norms. But that process of judging is not one of law, the Scalia school would say. To textualists, that approach is nothing less than judicial power in control, displacing democratic choices made through the political process.

Depending on the level (or degree) of judicial creativity, this fashioning of common-law constitutional principles leaves a moderate centrist like Justice Kennedy uneasy. That seemed to be happening as the closely watched term ending in June 2000 drew to its remarkable close. And so it came to be that in the partial-birth abortion case, a critical juncture in constitutional interpretation, Justice Kennedy was unwilling to engage in a creative form of common-law constitutionalism.