Supreme Court Report
The High Court’s Danish Prince
Whether to be or not to be a liberal or conservative majority, Kennedy decides
Posted Jun 5, 2007 3:55 AM CDT
By David G. Savage
On a mid-March night, the theater at the Kennedy Center was packed for an unusual drama. It was The Trial of Hamlet.
In the hands of Shakespeare, the prince was an enigma, a portrait of agonized indecision. But on this night, he stood trial in a legal drama. Was he mad, or simply a murderer, when he stabbed and killed Polonius?
Real lawyers--not actors--argued for the prosecution and the defense, and two of the nation’s leading psychiatrists testified as expert witnesses. A jury of 12 listened to the evidence. Presiding as the trial judge was the U.S. Supreme Court’s own Hamlet like figure, Justice Anthony M. Kennedy.
A Shakespeare buff, Kennedy came up with the idea for the staged trial. He said he was fascinated by Hamlet because of the rich complexity of the character and, indeed, because Hamlet is ultimately elusive.
An Audience Divided
On the nation’s highest court, Kennedy continues to prove elusive and hard to categorize. Plenty of legal commentators have voiced strong reactions to Kennedy’s recent decisions; but like Hamlet’s mock jury--which deadlocked on the issue of his guilt or innocence--they seem hopelessly divided on how to explain the decisions.
In April, for example, Kennedy cast the fifth and deciding vote with the court’s liberal faction to reject President Bush’s policy of regulatory inaction on global warming. Massachusetts v. Environmental Protection Agency, No. 05 1120. The decision gave the environmental movement its biggest victory in years.
The key question for the justices was one of standing: Could anyone show he had suffered a particular and immediate injury from global climate change that could be remedied by a court? Chief Justice John G. Roberts Jr. said the answer was no, and therefore the suit should be dismissed.
But during the oral argument, Kennedy cited an obscure precedent from 1907 that appeared in none of the briefs. In Georgia v. Tennessee Copper Co., 206 U.S. 230, the state was objecting to air pollution wafting over its territory, and Justice Oliver Wendell Holmes agreed it could sue to protect its independent and quasi sovereign interest “in all the earth and air within its domain.”
In his majority opinion, Justice John Paul Stevens adopted Kennedy’s suggestion and used Tennessee Copper as precedent to say Massachusetts and the other states indeed had standing to protect themselves from the impact of global warming.
Stevens and Kennedy also teamed up in April when the court turned down two cases involving Guantanamo Bay inmates. Although three justices voted to decide whether courts should hear the inmates’ case for habeas corpus, the court couldn’t garner the fourth vote needed to grant cert. Boumediene v. Bush, No. 06 1195, and Al Odah v. United States, No. 06 1196.
In a memo, Stevens and Kennedy said they voted against hearing the appeals because the lawyers for the Guantanamo detainees failed to exhaust all the available remedies in the law.
A few weeks later, Kennedy supplied a fifth vote to reverse the death sentences for Texas murderers in three separate cases. Abdul Kabir v. Quarterman, No. 05 11284; Brewer v. Quarterman, No. 05 11287; and Smith v. Texas, No. 05 11304. In all three, the majority said the Texas law before 1991 prevented jurors from weighing the mitigating evidence. In between the rulings on the environment and capital punishment, Kennedy spoke for a 5 4 conservative majority in what many saw as the most important anti abortion legal victory in the long struggle over the procedure. Gonzales v. Carhart, No. 05 0380, upheld Congress’ ban on a disputed mid term abortion method that opponents call “partial birth abortion.”
Kennedy’s words may prove even more significant over the long term: “The government has a legitimate and substantial interest in preserving and promoting fetal life,” he said, and the state “may use its voice and its regulatory authority to show its profound respect for the life within the woman.”
His opinion clears the way for new laws that seek to discourage pregnant women from choosing abortion. Several states are considering measures that would require a doctor to show the patient an ultrasound image of the fetus before performing an abortion. Other proposals would tell women about the pain a fetus could feel at the middle months of a pregnancy.
The reactions were many and sharply split. “Kennedy is all but inexplicable,” wrote University of Oregon law professor Garrett Epps and senior editor Dahlia Lithwick in the Internet magazine Slate. He “puzzles because he speaks in more than one voice.” They noted that in the past, he had written glowingly about the “heart of liberty” protected by the Constitution. He did so in support of gay rights, Lawrence v. Texas, 539 U.S. 558 (2003), and the right to choose abortion, Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). “How,” they asked, “to square the two men?”
By contrast, legal correspondent Jan Crawford Greenburg of ABC News praised Kennedy for consistency and courage. She noted that Kennedy had dissented vehemently seven years ago when the court had struck down a similar Nebraska state ban. Stenberg v. Carhart, 530 U.S. 914. “If I say something, I want to stick with it,” she quoted him as saying.
Shift in Position
When President Reagan nominated Kennedy to the court 20 years ago this fall, the new justice came with a belief that abortion was immoral and that Roe v. Wade, 410 U.S. 113 (1973), had been wrongly decided.
But in the spring of 1992, when a five member majority was poised to overturn Roe, Kennedy balked. He was reluctant to repeal a long standing constitutional right. Instead, he joined an uneasy compromise with Justices Sandra Day O’Connor and David H. Souter that preserved the right to choose abortion, while also giving states more leeway to regulate the practice.
The difference between the Nebraska case and this year’s decision appears to be O’Connor’s retirement and President Bush’s choice of Samuel A. Alito Jr. to replace her. Kennedy believed O’Connor and Souter had gone back on their deal in 2000 when they voted to strike down the state’s ban on so called partial birth abortions. This regulatory measure did not prevent women from having abortions, and therefore it should have been upheld under the joint opinion from 1992, he said.
“Casey, in short, struck a balance,” Kennedy said in April. This includes “regulating the medical profession in order to promote respect for life, including life of the unborn.” When Congress passed the Partial-Birth Abortion Ban Act, it said the disputed procedure was never “medically necessary” to preserve the health of women. Three lawsuits were filed to challenge the law, and in all three, U.S. district judges held trials to hear from medical experts.
Judge Richard Kopf in Nebraska held a two week trial and later wrote an opinion stretching over 400 pages to summarize the testimony. “In truth, ‘partial birth abortions’ . are sometimes necessary to preserve the health of a woman seeking an abortion. When it is needed, the health of women frequently hangs in balance,” he concluded. When a doctor faces an emergency with a patient who is bleeding heavily, the “intact” removal is by far the safest procedure, he said. The two other judges came to essentially the same conclusion.
But Kennedy’s opinion dismissed the findings and said there is “medical uncertainty” over the need for the disputed procedure. In dissent, Justice Ruth Bader Ginsburg complained that the majority “brushes under the rug the district courts’ well supported findings.”
A Door Is Ajar
Still, Kennedy’s opinion left the door open for advocates to bring a targeted, as applied challenge to the ban. If doctors can show the disputed procedure is needed to cope with “a particular condition,” they may be able to obtain a limited exemption from it, he said. When the court wraps up its term this month, expect more of the same. Kennedy is likely to hold the deciding vote when the court is split along conservative liberal lines.
Kennedy regularly votes in favor of free speech claims. This aligns him with the conservative bloc on cases involving campaign finance or abortion protests, but with the liberal bloc in recent cases involving indecency and Internet pornography.
He has strongly opposed the government’s use of race in decision making, which puts him with the conservative wing in opposition to affirmative action policies.
Columbia University law professor Michael Dorf, a former Kennedy clerk, has attributed Kennedy’s middle-of-the-road stance to his background as a moderate California Republican.
But sometimes the outcome is hard to forecast. As the trial judge in Hamlet’s case, he waited on stage while the jurors deliberated on the defendant’s mental state. They came back split 6-6, with no verdict. Addressing the Hamlet who sat before him, “Judge” Kennedy said he had no choice but “to remand you to the pages of our literary history.”
David G. Savage covers the U.S. Supreme Court for the Los Angeles Times and writes regularly for the ABA Journal.