A NEW VARIATION ON THE "strange new respect" award is needed--in fact, is being developed--for Supreme Court Justice Anthony Kennedy. The worst of Ronald Reagan's appointees to the Court, Kennedy delivered the 5-4 decision on March 1 in Roper v. Simmons, holding that killers who kill before they turn 18 can no longer be executed, because the meaning of the Eighth Amendment prohibition on cruel and unusual punishment has changed in the past 16 years.
"Strange new respect" was a Reagan-era coinage of Tom Bethell's, meant to sum up the unctuous indulgence with which the media receive the ideological surrender of a Washington conservative who has drifted left. (For instance, the website of Progressive magazine last week lauded Kennedy's action in Roper as showing "considerable growth and courage.") But what comes next if you've already earned "strange new respect"? If you're on the Supreme Court, then how about an official opinion from two colleagues flattering you as an Honorary Framer?
Justice Kennedy has been earning "strange new respect" since June 1992, when, in the space of a week, the Court announced opinions that he had authored or coauthored striking down prayers at high school graduations and--bitterest of all for those who had toiled for a Reaganesque Supreme Court--reaffirming Roe v. Wade. Since the release of the late Justice Harry Blackmun's papers, it has been a matter of public record that, in Planned Parenthood v. Casey, Kennedy abandoned a 5-4 majority that was ready to overrule Roe. Two years ago, in Lawrence v. Texas, he produced his pièce de résistance, striking down sodomy laws and arguably paving the way for the Court to one day strike down state laws prohibiting same-sex marriage.
In fairness, Kennedy dissented from the Court's disallowance of laws banning partial-birth abortion: Such laws, he insisted in his June 2000 dissent in Stenberg v. Carhart, are precisely the sort of can't-we-at-least-agree-on-this restriction that Casey allows for--or so he had thought. And on the same day as Stenberg, he dissented from the Court's decision in Hill v. Colorado, which upheld draconian restrictions on pro-life counseling outside abortion clinics. The Court's substantial withdrawal of abortion from the legislative process, he argued, makes one-on-one speech on the issue all the more important--a strong point.
Even so, Kennedy has come a long way from his days as a Sacramento lawyer-lobbyist and ally of the nascent Reagan circle. In recognition of which, and for his decision last week to ban capital punishment for juveniles, he has now been honored with an official concurrence by two of his colleagues, to be published in the United States Reports alongside all other Supreme Court opinions, concurrences, and dissents, suitable for citing as well as framing. What is unusual about this concurrence is that it does nothing but pat Justice Kennedy on the back and assure him that the Framers would be proud of him.
This astonishing one-page concurrence was written by Justice John Paul Stevens and joined by Justice Ruth Bader Ginsburg. First, they hail the Court's ruling on the preposterous grounds that without it, even 7-year-olds could have been executed, such having purportedly been the Common Law rule according to the Court's pre-March 1 jurisprudence.
They disdain to notice that other American institutions besides the U.S. Supreme Court are available to prevent the execution of 7-year-olds, and that, indeed, the failure of the justices in the majority to find such a case in American history suggests that those alternative safeguards are effective.
But never mind any of that. With a ritual nod to "evolving standards of decency," Stevens asserts: "That our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text."
Even John Marshall, no disparager of his own achievements, might well blanch at being likened to the God of Genesis, however allusively. He would also probably think the two concurrers had dialed the wrong John Marshall. Stevens and Ginsburg give us no citation here, so it's impossible to tell which of the Great Chief Justice's classically misunderstood dicta they are referring to, but we can guess.
It would probably be the one from Marbury v. Madison, about how "it is emphatically the province and duty of the judicial department to say what the law is." Of course: When two or more rules of law could apply to a case, the judge must determine which one prevails. That's what "saying what the law is" would have meant to a Blackstonian judge--and nearly all the lawyers of our founding generation learned from Blackstone's Commentaries. The "say what the law is" dictum does not mean "figure out what we personally think about some controversy and then declare that to be the law."
Or Stevens may have had in mind Marshall's dicta from McCulloch v. Maryland, about how "it is a constitution we are expounding," not a civil code, and a Constitution "intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." But it was the extent of Congress's powers, not the Court's own, that were at issue in McCulloch. These dicta are Marshall's explanation for construing Congress's powers broadly, allowing Congress some freedom to decide among various means of carrying out the powers assigned to it by the Constitution. Yet we constantly see these passages cited as though they announced a judicial power to change the Constitution--even though a Constitution laboring under such a rule would be ill suited to "endure for ages to come," since its meaning could change overnight by a poll of nine judges, as we saw last week in Roper.
Then comes the money line: "If great lawyers of his day--Alexander Hamilton, for example" (Justice Scalia quotes Hamilton at the opening of his dissent, you see)--"were sitting with us today, I would expect them to join Justice Kennedy's opinion for the Court." How nice. What next--carve Kennedy's visage on the Court's wall after they get rid of Moses?
Historically, the most successful conservative appointees to the high court have been jurists who had previous Washington experience, and who, despite that demoralizing experience, have a proven record--during or post-Washington--of defending their principles in the crucible of debate. Others, whose experience has been entirely in (say) Arizona or New Hampshire or California, find the plaudits of the media and the Georgetown A-list to be a bargain if all they cost is a retreat from certain conservative principles that one was, on second thought, not all that attached to anyway.
In Thomas Mann's novella Mario and the Magician, even people who think themselves strong-willed succumb to the sinister Cavaliere Cipolla, because they find, in the event, that independence of mind is really rather a burden. The only one who resists is a hot-blooded Italian . . .
David M. Wagner is associate professor of law at Regent University, and blogs at ninomania.blogspot.com.