Res Judicata: Anthony Kennedy, The Unprincipled Justice

August 22nd, 2011 at 1:52 am | 55 Comments |

| Print

The brewing controversy about President Obama’s healthcare law means that the case will end up in the Supreme Court. One appellate court has upheld the constitutionality of the law (by a 2-1 vote) and another has struck it down (by a 2-1 vote).

Splits on appellate panels are rare. Two split opinions on the same question are even rarer, maybe unprecedented. Within the next month a third appellate court will issue its opinion. Then the Supreme Court will be petitioned to take these cases and decide whether the federal government has the constitutional authority to mandate people to buy health insurance.

Very intelligent people, judges on the two courts as well as scholars have come down on both sides of the question. This tells us that there is no clear answer. The founding fathers did not anticipate that Congress would pass a bill requiring citizens to do anything except pay certain enumerated types of taxes. (The income tax was not one of them and was declared unconstitutional. It took a progressive president, Woodrow Wilson, who passionately believed in enhanced federal government power and two-thirds of the state legislatures to enact the 16th Amendment allowing a federal income tax.) The Supreme Court once took a fairly narrow interpretation of the commerce clause, rejecting the arguments that it allowed many New Deal government programs. Then, as we know, the switch in time saved nine, and the Court shifted. Suddenly, the commerce clause (allowing federal regulation of “interstate” commerce) grew exponentially. A few months later the Court upheld a federal law regulating the production and pricing of wheat grown by a farmer for his own consumption (Wickard v. Filburn). This was a political shift. It was not based on any new material unearthed from the Constitutional Convention.

I think I know what the framers meant by “interstate” commerce. Yet there isn’t enough direct evidence to persuade people holding different views. This does not mean we should feel free to interpret the Constitution subjectively. It means there is no single empirically correct interpretation that can command a majority. We are doomed to keep fighting over what the Constitution means.

Right now the Court is split 4-4 on what I like to think of originalist versus outcome-based decision making. Four justices (we know who they are), will vote to uphold the health care law as an appropriate exercise of federal power under the commerce clause of the Constitution. Those four justices would vote to uphold anything as an appropriate exercise of congressional power under the commerce clause (and if that won’t suffice, the all-purpose “necessary and proper” clause will do just fine). Their jurisprudence is not based on original intent or any decision before 1937. We heard President Obama speak for that view last week, when he basically said that if the Court decides the case “correctly” it will uphold the law.

Then we have four Justices (you know who they are) who will seriously question whether the commerce clause really is broad enough to encompass the health care law. I cannot predict that they will all vote to strike it down as exceeding that power. But their approach to answering the legal question will be totally different from the other faction. They will cite Madison, the Federalist Papers, Hamilton, John Marshall, and John Jay in trying to answer the question. It is quite likely that under such an analysis it will be difficult to uphold the law because there is no precedent for this type of requirement (mandating the purchase of insurance). These Justices will struggle with the case.

If I were to decide the case as a lay lawyer, I would side with Judge Jeffrey Sutton of the Sixth Circuit who reluctantly voted to uphold the law because he couldn’t discern from the Supreme Court precedents, which he is bound to follow, which side had the better of the argument. So he threw up his hands and kicked it up to the Supreme Court.

But the Supreme Court is not bound to follow its own precedents. Some of its cases say it is, but at least one precedent gets overturned every term, and sometimes it is more like three. So Justices with a strong view of what any constitutional provision means can engraft their opinions into law if they can persuade four of their colleagues to go along. I can hear in my mind’s ear the dialogue between Justice Scalia trying to persuade the flexible Justice Kennedy of the rightness of his view. And I can also hear the rather rigid Justice Kagan (we learned a great deal from her opinion on campaign finance two months ago) trying to persuade him of the correctness of her diametrically opposite view. But, remember, neither Scalia nor Kagan can objectively prove he or she is right. They both have much to cite, though all of Kagan’s material is post-1937.

If Justice Kennedy had a way to decide such questions that he could apply in case after case, he might fairly be characterized as a “thoughtful” jurist. But he does not lay down any neutral principles for deciding constitutional cases. Rather, he agrees with one faction in one case, and the other faction in another case. The media refers to this form of adjudication as moderation. It’s more accurately described as unprincipled.

There is no moderate way to interpret anything. One can only interpret by the application of neutral principle, i.e., original meaning, plain meaning, application of precedent, textualism, etc. If the meaning of a phrase is so elusive that the judge is willing to split the baby, or flip a coin, then that judge is not acting as a judge but rather a politician.

We would be better served without moderate Justices. We should expect our presidents to appoint people to the Supreme Court who have records and judicial philosophies. By and large, this is what we are getting, though it was different when timid Republicans were in office. A jurist like Anthony Kennedy, who was President Reagan’s third choice to the Court in 1987, would not be nominated today by any president unless he, like Reagan, was desperate for someone easily confirmable. So the next election is crucial for the future of the Supreme Court and for the country since it decides so many issues like whether the healthcare law is constitutional.

I’d like to know more about Mitt Romney and Rick Perry’s judicial appointments as governors. I know what Republican presidential candidates say they are looking for in a Supreme Court justice (interpretation not legislating), which means almost nothing. They all do both when it suits them. We should demand to know more about how these candidates have appointed judges, and how equally importantly, those judges have turned out in their performance. If we see timid appointments of moderates, then we will know all we need to know.

Recent Posts by Howard Foster

55 Comments so far ↓

  • ConnerMcMaub

    So the whole thing boils down to dressed up name calling because Justice Kennedy decides case by case, instead of by ideology? I didn’t like the activist decision of Citizens United, or the don’t cite this case as precedent Bush v Gore but I don’t think it’s because Kennedy is amoral or unprincipled. What a stupidly formless insult disguised as commentary. If you want to talk about supreme court principles why don’t you discuss justices who receive thousands of dollars worth of gifts from or who have refused to disclose hundred of thousands in income from entities who have cases before the court.

    • Smargalicious

      “What a stupidly formless insult disguised as commentary.”

      Bingo. Unfortunately the FF has many of these types of articles.

      • ConnerMcMaub

        I’m totally freaked out, Smarg agrees with a liberal supporter of President Obama.

    • Nanotek

      + 1 ConnerMcMaub

      and also … could Roberts or Alito have been more deceitful during their confirmation hearings?

      • ConnerMcMaub

        Alito and Roberts did say they would respect precedent but it’s not much of a deviation from the post Bork rule of say absolutely nothing. They all stonewall because they have to. I don’t like Justice Scalia’s positions most of the time but I think he’s principled. Years ago I never thought I’d miss Rehnquist but I do, he didn’t always follow party line and decided case by case.

  • medinnus

    “I’m against judicial activism… up until it benefits my cause” – GOP judicial philosophy

  • Demosthenes

    I couldn’t find it even after some searching, but I remember having seen a political cartoon, by Ben Franklin I believe, that showed a tree bending in the wind, and another tree snapped apart by the same storm. The caption read: “The Constitution that does not bend, will break.”

    People have some weird fetish about the Constitution these days, a fetish that appears to increase in intensity at a rate inversely proportional to the fetishizers’ familiarity with the document (witness Bachmann et al.). The bottom line is that the Framers intended the Constitution as a work in progress; otherwise, why bother allowing Amendments? Why the time-limited 3/5 compromise on slavery?

    The idea that jurisprudence begins and ends with James Madison and John Marshall is facile and naive to the extreme, especially once you consider that it was Marshall himself in Marbury v. Madison who essentially came up with the idea of “judicial review,” i.e. the notion that legislation could be struck down as “unconstitutional.” This notion is found absolutely nowhere in the Constitution. Whence do the “Strict Constructionists” derive it? How is it consistent with their stated views? If judicial review is not found in the Constitution, how do the “Strict Constructionists” intend to use it to strike down Obamacare (or anything else) as unconstitutional?

    And why should jurisprudence limit itself to decisions and methodologies from before 1937?

    • Wicked Lad

      Regarding the founders, I wonder about this: “The founding fathers did not anticipate that Congress would pass a bill requiring citizens to do anything except pay certain enumerated types of taxes.”

      How does one square this with the Militia Act of 1792 ( –signed into law by George Washington–which required citizens do a lot more than pay “certain enumerated types of taxes,” including that “each and every free able-bodied white male citizen” between the ages of 18 and 45 “provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch,” etc.?

      If you’re going to invoke original intent, doesn’t that give you a strong indication? That’s the founders requiring citizens to make purchases. How does this differ in principle from requiring people to purchase health insurance?

      • Frumplestiltskin

        I used the exact same citation against our resident boob WillyP, his retort that it occured during Colonial times when we were still under the King (hence the word Colonial), no shit, this was how dumb he was. Foster does not seeem any brighter.

      • Chris Balsz

        The requirement that every man “provide himself” with a musket was held satisfied when a mill owner or plantation owner bought a wagonload of rifles for other people, and called himself “Colonel”. If I accepted that precedent then I guess I have a constitutional right to join an insurance pool.

    • Chris Balsz

      The more you “spare the country” by making lifetime decisions by unelected judges, with the only recourse being a Constitutional amendment, the more the government resembles the rigid tree.

      This “work in progress” has its own mechanisms for amendment. If you presume the practical authority of the government, based on a popular fatalistic submission to its policies, and evade the Constitution in order to make government work better, you will find there is no practical authority outside the Constitution. The American people do not obey laws they, personally, find morally wrong. That is why there are no streets named after Kenneth Starr, and plenty named for Martin Luther King Jr. To defy the only universal and inherited political agreement for convenience is going to be defied as immoral. To be “pragmatic” about our Constitution is actually impracticable.

    • Carney

      It’s precisely the inclusion of an amendment process that tells us that the Founding Fathers intended that only formally enacted changes to the actual written text of the Constitution, as provided for in Article VI, can legitimately change the meaning of the Constitution.

      Otherwise there’s no point in any of it; it’s all up for grabs at any time, ready to be interpreted into existence, or interpreted away, despite the absence of any written textual basis.

      • Nanotek

        What do you think the original intent of the 9th Amendment requires when an unenumerated right is asserted? such as the right to pursue happiness…

        and while you’re at it, can you show me where the Constitution allows a “balancing” of the government’s needs against guaranteed rights, as “originalists” engage in, in overwhelming the plain language of an amendment?

  • Rabiner

    It’s pretty sad that the argument made by the author can be boiled down to this:

    Because Justice Kennedy votes 60/40 with the conservative Justices he is branded unprincipled. Ever think that maybe the conservative Justices are wrong 40% of the time?

  • chephren

    This post is blinkered, illogical nonsense. Since when is more politicization and wider factional division good for the decision-making process at the Supreme Court?

    Far from being “unprincipled” or unconstitutional, the individual mandate requiring Americans to buy insurance was considered for many years to be a sensible, and quite constitutional, conservative position. The Heritage Foundation, no less, carefully analysed the health care issue, and strongly endorsed the individual mandate as a means of preserving – not weakening – the private health insurance market.

    As soon as Obamacare, a program made up largely of reforms conceived by Republicans, passed, the GOP, the Heritage Foundation, and Mitt Romney fraudulently and hypocritically rejected it as ‘Socialism’ and a dangerous expansion of Big Government.

    Says Howard Foster: “We should expect our presidents to appoint people to the Supreme Court who have records and judicial philosophies.” Really? But let’s not be coy – this means records and philosophies of the reliably originalist, textual, corporation-friendly variety. Does Foster pretend other philosophies are valid? Never mind that the Constitution as written did not extend rights to corporations, certainly not legal personhood or the many benefits derived therefrom.

    Never mind, also, that the requirement of a record and judicial philosophy logically disqualifies that incurious human rubber-stamp, Clarence Thomas – who explicitly denied having any judicial philosophy at all. As for his judicial record at the time he was nominated, not even Thomas’s most ardent fans could claim he had one.

    Thomas was and remains a cipher, but he’s in the right faction, so God forbid he should be subject to the same scrutiny as the “unprincipled” Anthony Kennedy.

    Howard Foster seems to suggest the ideal Supreme Court would be made up of nine Clarence Thomases – reliable, faction-adherent legal drones who apply textual principle without question or nuance. As if such a thing is even possible. Stupid.

  • Emma

    I know what Republican presidential candidates say they are looking for in a Supreme Court justice (interpretation not legislating), which means almost nothing. They all do both when it suits them.

    First, Foster slanders the liberal wing of the Court while praising the conservative wing. Translation: hurray for my side. Then, in an unguarded moment, Foster lets slip what he really thinks: that ALL of the justices are legislators in disguise — i.e., they decide cases in terms of the outcome they want and not in terms of unwavering principles.

    Well, here’s what I really think: Foster’s political preference, wrapped in garbled, cloying emotion, is not commentary, is not analysis, is not insightful, and does not belong on these pages.

  • Houndentenor

    “Maybe unprecedented”?

    There’s either a precedent or there’s not. Surely there’s a way to check. I’m sick of lazy writers who can’t be bothered to do their research. If you don’t know, don’t assume.

  • ottovbvs

    “We should expect our presidents to appoint people to the Supreme Court who have records and judicial philosophies.”

    This is is a plea to politicicize the courts. The goal being to produce outcomes that satisfy some ideological beliefs rather than the greater good of our polity or, heaven forbid, absurd abstract concepts like justice.

  • Slide

    what a reprehensible article. Don’t agree with Kennedy? Well then he is unprincipled. But I am sure that you love Justice Thomas and all the “principled” ways he and his teabagger wife have enriched themselves financially. Yes, he literally reeks of principles. Oh, and someone that is not easy to predict on the court is unprincipled while a justice that can be predicted with atomic clock precision on every single case is the principled one and a role model for future supreme court candidates?

    For moronic political hacks like the author of this article, the world is black and white. The law is black and white. Nothing could be further from the truth. Give me an individual that sees the shades of gray anytime over the rigidly dogmatic justices that Mr. Foster would prefer.

  • Banty

    “But the Supreme Court is not bound to follow its own precedents. Some of its cases say it is, but at least one precedent gets overturned every term, and sometimes it is more like three. So Justices with a strong view of what any constitutional provision means can engraft their opinions into law if they can persuade four of their colleagues to go along. ”

    So much for stare decisis.

    The right hates “judicial activism”, unless …

    • Carney

      Judicial activism does not consist of striking down statutes or overturning precedent.

      Judicial restraint does not consist of refraining from such strikedowns or overturns.

      You just have no idea what the terms MEAN.

      • Nanotek

        what does it mean for you?

        • Carney

          It means understanding and respecting the difference between the judicial and elected branches, between personally preferred public policy outcomes and constitutional limits and requirements.

          It means allowing a law you would vote against as a Congressman or state legislator on grounds of being deeply unfair, unwise, even destructive to stand if it violates no (actually existing, not spuriously invented) constitutional prohibition. It means striking down a law you are in deep sympathy with if it exceeds the (actually existing, not spuriously invented) limits of federal power.

          It means understanding that a judge or justice’s role is NOT to “do justice”, or to “expand opportunity”, or to be a “voice for the voiceless and marginalized”, or to “represent a long-excluded community”, or be part of the “march of progress”, or any other PC / lefty buzzwords any more than it is to be an advocate for national security, traditional values, free enterprise, or Western civilization.

          It means humility, an understanding that a judge is not an inscrutable awesome Solomon, a philosopher-king handing down brilliant solutions that impress and humble us, resolving thorny problems we are unable to muddle through on our own.

          Rather a judge is a jumped-up clerk, an unglamorous mechanic doing the rather unimpressive and not all that difficult task of determining whether an action fits a regulation, a regulation fits a statute, or a statute fits the Constitution, AS WRITTEN AND ORIGINALLY INTENDED. Like a monkey or toddler trying to fit a peg into a hole puzzle.

          It’s a cold-hearted, purely cerebral, isolated and context-free exercise in which the real world consequence and policy outcome is and should be a matter of UTTER INDIFFERENCE AND IRRELEVANCE. Not a chance to preen and await the hosannas and flower strewers celebrating your fashionable opinion dragging cultural norms leftward.

        • Banty

          I think Nanotek asked for a definition, not a diatribe.

          And I think to have a propensity to go against established precedent would show a propensity to activism.

  • CanadianLiberal

    Mr. Foster, this article is a perfect example of exactly what is wrong the Republican Party and conservatives in your country today. What an insulting, wrong-headed piece of garbage. “Principled” does not mean “agree with *our* team every time, even when we’re wrong.” It means deciding each case on its merits, regardless of what others decide.

    Partisan hackery. Unthinking nonsense. Transparent propaganda attempt. You, sir, are an ass.

    The most unprincipled Justice on the Court right now is Clarence Thomas. More and more evidence of his failure to disclose income and gifts is emerging. This makes him guilty of committing perjury in sworn statements for over 13 years. He had a clear conflict-of-interest in Citizens United – and his failure to recuse himself is 100% unethical.

    If you want to rail on about someone being unprincipled, how about a call to impeach Clarence Thomas based on actual ethics breaches and proof of perjury?

  • Nanotek

    “originalist versus outcome-based decision making”

    oh please … “originalist” is conservative “outcome-based decision making”

  • blueshark

    “Splits on appellate panels are rare. Two split opinions on the same question are even rarer, maybe unprecedented. ”

    Really? Since when? I recently served as a law clerk on a U.S. Circuit Court of Appeals and I can tell you that panel splits are as common as grass. Such an misstatement of elementary fact leads me to question whether you have any idea whatever what it is that you are talking about.

    • SteveT

      FF columnists are not always the best at checking facts. Remember the Reagan statue “controversy”?

  • balconesfault

    How about “not bound to ideology” instead of “unprincipled”?

    Ahh – but in today’s GOP “not bound to ideology” is the same as unprincipled. They want wind-up justices like Alito, and not critical thinking ones.

  • Frumplestiltskin

    And Foster is full of it. Kennedy will vote to strike down the law along with Alito and Thomas, the rest will affirm it. Foster is just saying Conservative Liberal Kennedy swing vote, but this is not analysis at all.

    This guy is an embarrassment at Frum Forum.

    • balconesfault

      I have never liked the mandate – feeling that all along we should have had a publicly funded de-minimus insurance with a tax rebate for those having private insurance.

      At the end of the day, this is essentially what we’ll have, except that the public will be funding the purchase of private insurance, and some who can’t figure out the system will be hit with a penalty.

      The mandate as it stands is an essentially conservative solution. Punish those who don’t participate in the system (and are thus “free riders” for the insurance that hospital emergency rooms tacitly provides), and push money through the private insurance market rather than giving a public option a toehold.

      Personally, at the end of the day, I’d be satisfied politically and from a legal framework if the mandate is severed and the rest of ACA is allowed to stand. Then let the GOP have the fun of campaigning to repeal ACA without the mandate provision included.

      Meanwhile, in my mind the mandate is tied with the concept of privatized Social Security, which I’ve always considered unconstitutional. I can see how Government can tax me to fund a social insurance program that supports the General Welfare. I can’t see how Government can mandate that I put a certain amount of money into what would essentially be a private escrow account, dedicated only to my personal welfare, with nothing to do with the General Welfare.

      If the mandate is upheld, I think it becomes a precedent for privatized Social Security accounts, which is a horrible idea.

      • Frumplestiltskin

        balcone, I agree, I got in huge arguments over at TNR about just this issue, far favoring tax and credit, which is clearly Constitutional.
        My argument now is just how horrible this Foster “analysis” is.

        • balconesfault

          Yep. Numerous commentors above have called it what it is … a fancy way of assigning virtue to those who vote the way Foster would want 100% of the time.

  • Frumplestiltskin

    Here is a thought out piece about the topic, one that will not make you cringe:

  • Frumplestiltskin

    And here is some legal anaylsis as to why Scalia and Roberts would uphold the mandate:

  • cryptozoologist

    this author proceeds from the premise that by applying certain rigid principles of jurisprudence that ambiguity can be entirely removed from the legal system and that a ‘principled’ jurist will always reach the same conclusion provided they commence from the same set of ‘principles’.

    this premise is demonstrably false.

    in 1931, kurt godel published his incompleteness theorems which state (i quote from the wikipedia article

    “The first incompleteness theorem states that no consistent system of axioms whose theorems can be listed by an “effective procedure” (essentially, a computer program) is capable of proving all facts about the natural numbers. For any such system, there will always be statements about the natural numbers that are true, but that are unprovable within the system. The second incompleteness theorem shows that if such a system is also capable of proving certain basic facts about the natural numbers, then one particular arithmetic truth the system cannot prove is the consistency of the system itself.”

    in short, even if we limit ourselves to a simple system consisting of whole positive numbers, and the usual rules of arithmetic, then there are statements about this system that cannot under any circumstances be proven even though they are true. the philosophical implications of this are deep and initially disconcerting to many, but from a mathematical perspective, unassailable.

    if we regard the law as an axiomatic system that is far more complicated and far less rigidly defined than the whole numbers under usual arithmetic. then we must conclude that some statements within the system are undecidable.

    there are more things in heaven and earth, mr. foster, than are dreamt of in your philosophy.

  • think4yourself

    @ Foster: “We would be better served without moderate Justices.”

    Why? You think moderates are unprincipled? You are making the argument that the Liberal wing and Conservative wing of the court are correct and Kennedy is not because he does not side with one or other all the time. I’ll bet that if he sided with the Liberal wing all of the time, you would then think he was in error and would prefer that he be at least moderate.

    Justice Kennedy as did Justice O’Conner look at the issues and vote based not on a Conservative or Liberal ideology but based upon his opinion of the matter at hand and how that relates to the Constitution. It’s not a knee-jerk reaction but a thoughtful review of the facts.

    How refreshing.

  • Nanotek

    got it … you’re super principled

    • Frumplestiltskin

      I clicked on that amatuerish site and on the front page it had a quote that literally referred to illegal aliens as “wetbacks”. Stay classy Foster you ambulance chasing hack.
      There is a quote, I suppose it is approving, that states: “as long as it is possible to hire wetbacks at 1o cents an hour, they will be coming across the border until Kingdom come.”
      Kitty Calavita, Inside the State: The Bracero Program, Immigration and the I.N.S. 37 (1992)(citing Senator Hubert Humphrey during hearings on migratory labor in 1952)

      I can’t imagine what kind of dark, sordid mind this Foster has to put that quote on his websites front page as something to be proud of.

      • Chris Balsz

        Wow, that’s almost as outrageous as Mexicans in Mexico referring to me as a “gringo”.

        • LauraNo

          So what if they do? Didn’t your mother teach you that two wrongs don’t make a right? And have you actually heard someone call you a gringo? If not, you are justifying someone else’s bigotry for no reason. That’s a strange thing to do.

        • balconesfault

          Gringo is generally applied to those who don’t speak Spanish while south of the border. Etymology:

          Most scholars agree that gringo is a variant of griego ‘Greek’ (cf. Greek to me);[5][6][7][8][9] but it has also been argued that griego > gringo is phonetically unlikely (it requires two separate steps, griego > grigo, and after, grigo > gringo), and that it may instead come from the language of the Spanish Romani, Caló, as a variant of (pere)gringo ‘wayfarer, stranger’.[6]

          There’s not really a slur intended … unlike “wetback”, which is clearly intended as a slur.

        • Frumplestiltskin

          I have been living in Mexico for 6 years and have not been once called a gringo except by myself referring to myself. Believe it or not I have either been called by my name or my title at work.

      • Nanotek

        being a contributor at FF seems a function of blind ideology rather than skill, expertise or coherence; like the WSJ editorial page

  • Primrose

    I agree I thought it was unprincipled article. And the idea of a court with Thomas in it that Kennedy is the unprincipaled one. Partisan nonsense.

  • Graychin

    Some call it principle. Others call it dogma or ideology, or partisanship.

    Anthony Kennedy, and he alone among the Supremes, does his best to interpret the law and the Constitution impartially and fairly. That approach should be praised, not condemned.

    Foster makes snide reference to the certainty of the votes of the liberal justices and their sinister motivations, but claims to be uncertain that the conservatives will vote to overturn the ACA. He’s either kidding us, or kidding himself. Their votes are as sure as any votes have ever been.

  • LauraNo

    Because ‘principled’ means blindly ideological?

  • dugfromthearth

    Anthony Kennedy agrees with himself 100% of the time. Any justice who does not agree with Kennedy 100% is unprincipled. If they were principled, they would always agree with him.

  • Is “Moderate” Really Just “Unprincipled”? | Demablogue

    [...] Foster comments on Justice Anthony Kennedy’s “moderation”, and then makes the case against [...]

  • baw1064

    I’m hoping the Supremes won’t take the case. They will, of course, but if they let the lower court rulings stand, then people could just move to the part of the country with the court ruling they agreed with.