by Frank J. Colucci. Lawrence, KS: University Press of Kansas, 2009. 264pp. Cloth $34.95. ISBN: 9780700616626.
Reviewed by Helen J. Knowles, Department of Political Science, State University of New York at Oswego. Email: helen.knowles [at] oswego.edu.
When I was invited to review JUSTICE KENNEDY’S JURISPRUDENCE: THE FULL AND NECESSARY MEANING OF LIBERTY, by political scientist Frank J. Colucci, I initially resisted because of my concerns about a potential (or, at the very least, perceived) conflict of interest. The review request was, after all, made to the only other author of a book about US Supreme Court Justice Anthony M. Kennedy (Knowles 2009). In response, the editor of the LAW & POLITICS BOOK REVIEW assured me that it was this aspect of my cv that made me the natural choice to write about Colucci’s work. I would like to think that this is a recognition of the extent of my knowledge about Kennedy’s jurisprudence. After reading Colucci’s book, I am compelled to reach a different conclusion. As the Justice at the ideological center of the Court, Kennedy is repeatedly referred to as the “man in the middle” – “the true balance wheel of the court” (Bradford Berenson, quoted in Brust 2003, 25). However, it clearly requires an act of academic bravery to attempt to formulate a convincing argument that this wheel is neither squeaky nor in need of another tire. In other words, it is no small task to arrive at affirmative conclusions when “survey[ing] the larger body of Kennedy’s writings to determine whether he applies a consistent approach to constitutional interpretation” – as Colucci and I have both done (Colucci’s statement that prior to publication of his book “no one” had yet done this notwithstanding (p.1)).
“Our obligation is to define the liberty of all, not to mandate our own moral code” (CASEY, 850). Paradoxically, this quotation, from the joint opinion in PLANNED PARENTHOOD v. CASEY, makes four appearances in the first two chapters of JUSTICE KENNEDY’S JURISPRUDENCE – in which Colucci seeks to understand Kennedy’s interpretations of individual liberty and dignity by drawing on his opinions in LEE v. WEISMAN, LAWRENCE v. TEXAS, and ROPER v. SIMMONS (chapter 1); and his abortion opinions (chapter 2). The paradox lies in the fact that this book reaches its conclusions by arguing that Kennedy seemingly does the one thing that he disavowed in CASEY. Using the Justice’s own words from his Supreme Court confirmation testimony, Colucci states: “Kennedy employs a consistent jurisprudence based on what he considers the ‘full and necessary meaning’ of liberty,” a term which “embodies a moral concept that judges must independently enforce” (pp.1, 10). This concept, which perhaps might also be described as consisting of a collection of “substantive moral ideals,” is “stated in the text of the Constitution.” However, Justice Kennedy does not fulfill his judicial duty “to discover the true nature” of these [*20] ideals by employing the originalist principles and methods favored by some of his more conservative colleagues. Instead, he draws upon an understanding of the proper judicial role that “in rhetoric and substance shares many similarities with the presumption of liberty recently advocated by Randy Barnett” and the “moral reading of the Constitution championed by theorist Ronald Dworkin and former Justice William J. Brennan” (pp.3, 5, ix-x). This is a novel conclusion that I would have liked to see Colucci develop in more detail. However, it is possible that had he done so, he might have demonstrated that connecting Kennedy’s opinions to elements of these three individuals’ divergent legal philosophies exposes the inconsistencies in the Justice’s jurisprudence.
In order to paint his portrait of Kennedy’s jurisprudence, Colucci largely confines himself to analyzing and drawing upon the Justice’s own words, an effective approach for a “judicial study” (Colucci draws a distinction between his book which is this type of work –“focusing on particular aspects of a justice’s tenure seeking ‘to illuminate the judicial process’” – and the “full-life study” that is a judicial biography) (p.194n42, quoting Posner 1995, 516). However, in the first two chapters he also makes use of materials that draw him away from solid methodological ground. Colucci encourages us to take Justice Kennedy’s Catholicism seriously by comparing the rhetoric and substance of a number of his opinions to papal documents pertaining to human life, dignity, and the vocation of women. While Colucci chooses his words carefully, arguing that Kennedy’s religious beliefs “likely inspire” and “profoundly shape” his “reliance on liberty and human dignity,” he offers a disclaimer: “I offer no deterministic argument” (pp.31, 200n74). This is essential because, as one might expect from a Justice who values his personal privacy as much as he does, Kennedy does not make public statements about his religion (it is worth noting that the one source cited by Colucci for information about Kennedy’s Catholicism – a Supreme Court Historical Society website – no longer exists). Therefore, in a book that is devoted to, and indeed spends a great deal of time employing Kennedy’s own words, I remain unconvinced that the discussions of his Catholicism are substantively and methodologically meritorious.
By contrast, as has become clear in recent years, the papers of former Justice Blackmun do offer valuable windows into the decision-making processes of the Court’s members, and Colucci is right to make use of these materials. However, his reading of the notes that Blackmun took after meeting with Kennedy to discuss the distribution of labor for the joint opinion in CASEY offers a cautionary tale. Linda Greenhouse perfectly captured one of the challenges confronting researchers who use these materials: “deciphering Harry Blackmun’s notes became easier over time but remained a challenge. . . . [T]here were some passages that simply remained indecipherable” (Greenhouse 2005, 254). This is what we might call the problem of ‘the supremely illegible.’ When reading notes whose legibility makes their content questionable, it behooves the researcher to be especially careful when he or she reaches interpretive conclusions that are [*21] attractive because of their ability to fortify one’s main arguments. Colucci concludes that Blackmun wrote, on two separate lines, “can I jam some” and “RC agony and Harlan” (p.50). Readers are encouraged to form their own impressions of Colucci’s interpretive efforts. Here, it is important to note that there is agreement about Blackmun’s observation that as a Catholic Kennedy found the abortion cases particularly agonizing. However, no other scholarly interpreter of these notes concludes that Blackmun wanted to “jam” something (the jury is still out on whether he wrote “Harlan” or “traitor”) – after all, there is no evidence that he was crafting an opinion that he wanted Kennedy to join. Indeed, there is agreement that Blackmun was actually trying to decide whether he could “join some” of the joint opinion (which he eventually did) (Ward 2005, 27; Ward & Weiden 2006, 176).
Many of the aforementioned concerns about the methodology and substance of JUSTICE KENNEDY’S JURISPRUDENCE were alleviated when I read chapters 3 and 4, in which Colucci addresses his subject’s free speech and equal protection opinions respectively. These chapters nicely complement each other because they deal with two areas of the law in which Kennedy exhibits a very strong commitment to what Pete Wilson, the former Governor of, and US Senator from Kennedy’s home State of California once described in the following way: “I think it strikes him [Justice Kennedy] as terribly unfair that anyone’s individual potential should be in any way limited by their being classed as a member of a group, and treated in accordance with their group membership, rather than what they deserve to receive as individuals” (quoted in Rosen 1996, 86). Surveying a very large range of cases, Colucci seeks to demonstrate that Kennedy’s words in TURNER BROADCASTING SYSTEM v. FCC animate all but a very small percentage of his free expression opinions: “At the heart of the First Amendment is the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration and allegiance” (TURNER, 641). The same underlying principle of treating individuals equally, as individuals, is evident in the gay rights and race relations cases discussed in chapter 4. These are cases in which, Colucci argues, the principles of Kennedy’s theory of “neutral individualism” are most evident when he invokes either the words or spirit of Justice Harlan’s dissent in PLESSY v. FERGUSON (Kennedy agrees with Harlan that the Constitution “neither knows nor tolerates classes among citizens,” but departs from his more absolutist “color-blind” language) or Chief Justice Warren’s opinion for the Court in BROWN v. BOARD OF EDUCATION (that segregation of individuals by race “generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone”) (PLESSY, 559; BROWN, 493-4).
One might be forgiven for thinking that chapter 5, entitled “Splitting the Atom of Sovereignty: Dignity and Divided Power” and prefaced by a quotation from Kennedy’s concurring opinion in UNITED STATES v. LOPEZ, is about federalism. However, as is the case with all the chapters in this book, multiple [*22] areas of the law are addressed. With a refreshingly critical eye that is not cast upon the issues analyzed in the other chapters, Colucci questions what Erwin Chemerinsky has appropriately described as the Rehnquist Court’s “assumptions of federalism,” theoretically and historically problematic assumptions which, Colucci persuasively argues, underpin Kennedy’s oh-so-catchy atomic separation of powers metaphor (Chemerinsky 2006). Indeed, one might be tempted, here, to borrow Gerald Gunther’s famous description of strict scrutiny, because this chapter of JUSTICE KENNEDY’S JURISPRUDENCE strongly suggests that Kennedy’s understanding of the limits on federal power is fatal in theory and in fact (Gunther 1972).
There are occasions when Colucci struggles to incorporate his central argument into his analysis, thereby weakening the overall cohesiveness of his book. However, it should be noted that, on its own, the concluding chapter, entitled “Liberty above Democracy,” has the potential to make a valuable contribution to the literature on Justice Kennedy. Indeed, for undergraduate judicial politics and Supreme Court courses, this chapter could certainly play an important role in class discussions. Kennedy’s majority opinions in BOUMEDIENE v. BUSH and KENNEDY v. LOUISIANA, and the per curiam opinion in BUSH v. GORE (which Kennedy is generally acknowledged to have played a significant role in writing) are used by Colucci to “exemplify not just Kennedy’s critical role in expanding judicial power but his larger interpretive approach” (p.172). This exemplification goal is certainly achieved in this chapter where, it is important to note, references to Kennedy’s Catholicism are notable by their absence.
My own research about Justice Kennedy has made me acutely aware of both the obvious and the more nuanced elements of the disagreements that dominate the jurisprudential debates in which Kennedy frequently engages with Justice Scalia – debates that I have on occasion referred to as comprising a “dialogue on liberty” (Knowles 2009, 119). Upon finishing JUSTICE KENNEDY’S JURISPRUDENCE, I came to an entirely unexpected conclusion. The book makes a compelling (although unintentional, I suspect) case for the conclusion that it is Scalia, not Kennedy, who makes the most persuasive and emotionally satisfying arguments about his adversary’s judicial decision-making. This will no doubt surprise those who are aware that in THE TIE GOES TO FREEDOM I do not excoriate Justice Kennedy, and am far more sympathetic (as is Colucci) to his libertarian tendencies than to the strands of majoritarianism that one finds woven into Scalia’s opinions. However, what if Colucci is correct that the element of consistency in Kennedy’s decision-making is his personal adherence to his own independent, moral reading of both the text and underlying principles of the US Constitution? What if Kennedy’s jurisprudence is driven by his own “conception of the substantive nature” of the liberty that is a central “constitutional value” (p.186)? These conclusions appear, to this reader at least, to be very similar to those formed by Justice Scalia, who has often written that Justice Kennedy’s jurisprudence is shaped by his own “personal predilection” (CASEY, 984). Whether [*23] that is the case remains, of course, a matter of interpretation. However, what Colucci’s book does demonstrate is that we should all take very seriously the implications of the power possessed by the “man in the middle” of the current US Supreme Court, the Justice who, it appears, is still searching for the “full and necessary meaning of liberty.”
Brust, Richard. 2003. “The Man in the Middle.” ABA JOURNAL 89:24-5.
Chemerinsky, Erwin. 2006. “The Assumptions of Federalism.” STANFORD LAW REVIEW 58:1763-91.
Greenhouse, Linda. 2005. BECOMING JUSTICE BLACKMUN: HARRY BLACKMUN’S SUPREME COURT JOURNEY. New York: Times Books.
Gunther, Gerald. 1972. “In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection.” HARVARD LAW REVIEW 86:1-48.
Knowles, Helen J. 2009. THE TIE GOES TO FREEDOM: JUSTICE ANTHONY M. KENNEDY ON LIBERTY. Lanham, MD: Rowman & Littlefield.
Posner, Richard A. 1995. “Judicial Biography.” NEW YORK UNIVERSITY LAW REVIEW 70:502-23.
Rosen, Jeffrey. 1996. “The Agonizer.” THE NEW YORKER, November 11, 82-90.
Ward, Artemus and David L. Weiden. 2006. SORCERERS’ APPRENTICES: 100 YEARS OF LAW CLERKS AT THE UNITED STATES SUPREME COURT. New York: NYU Press.
Ward, Artemus. 2005. “Roman Catholic Agony: Justice Anthony Kennedy and the Regime Politics of Abortion on the US Supreme Court.” Paper presented at the annual meeting of the Southern Political Science Association, New Orleans, LA, January 6.
BOUMEDIENE v. BUSH, 128 S.Ct. 2229 (2008).
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).
BUSH v. GORE, 531 U.S. 98 (2000).
KENNEDY v. LOUISIANA, 128 S.Ct. 2641 (2008).
LAWRENCE v. TEXAS, 539 U.S. 558 (2003).
LEE v. WEISMAN, 505 U.S. 577 (1992).
PLANNED PARENTHOOD v. CASEY, 505 U.S. 833 (1992).
PLESSY v. FERGUSON, 163 U.S. 537 (1896).
ROPER v. SIMMONS, 543 U.S. 551 (2005).
TURNER BROADCASTING SYSTEM v. FCC, 512 U.S. 622 (1994).
UNITED STATES v. LOPEZ, 514 U.S. 549 (1995).
© Copyright 2010 by the author, Helen J. Knowles.