law

Thank You, Justice Kennedy

Thank You, Justice Kennedy

Heather Stinson

Justice Kennedy is in the news due to his recent retirement announcement. Once again, many of those speaking or writing about him will mischaracterize his jurisprudence. To most, his voting patterns seem erratic and unpredictable. Yet, after all these decades, more than anyone else on the Court, Justice Kennedy has been uber-consistent and reliable. You would think that more people would better understand him, although a few seem to get it, as evidenced in the titles of some books regarding his jurisprudence. See, here, here, and here.

I became familiar with Justice Kennedy, like many law students, during the first few weeks of Constitutional Law. My professor introduced him to us by saying, “now for all of you libertarians and freedom lovers in the room, you are going to love Justice Kennedy,” and love him I did. His votes were on point with how I would have personally sided on each issue. More than that though, his words swept me up and for the time it took to read his opinion(s), I felt a sense of hope and optimism in the overall good of people. He made me love our Constitution, giving me a feeling that the structure and order it provided existed in perfect harmony, so as to preserve as much freedom as possible.

Many become confused over Justice Kennedy’s voting patterns; one minute he is authoring opinions that make him appear reliably conservative, and the next minute he is penning prose that would make most conservative voters cringe. I must admit, I too cringed when I first read the language he used in Obergefell v. Hodges: what he referred to as “Principles”. While I agreed with his vote, I was confused by his method of Constitutional Law and wondered if I had inadvertently wandered into a philosophy class. While I still have reservations about his methods, I can at least appreciate that to Justice Kennedy there is a point to the Constitution. There are, of course, the words and their dictionary definitions (where most conservatives begin and end), but there is also meaning behind the words chosen, the purpose of crafting the whole document in the first place. To Justice Kennedy, it’s not that the Constitution is ‘alive,’ as many on the left like to view it-subject to modern interpretation, with an updated dictionary. Rather, it is more like the original words and structure point to the Founders hope in penning it. Justice Kennedy simply showed us the fine tension that must exist between federal and state, and between state and person, to ensure that enough space exists in the in-between for breathing, which is a necessary requirement for life, and liberty.

It is ironic, that so many conservatives now feel excitement about the chance to get a true Constitutionalist onto the bench in his stead. Justice Kennedy is nothing but a Constitutionalist. It is also interesting that his votes are tracked, as if the Court has sportscasters, always trying to figure out his next move. I can hear them now saying, “this season he is batting conservative, with only two fly balls out in Left-field.” I can’t imagine how frustrating it has been to be known as some sort of watered-down, unreliable conservative, whose only purpose on the Court is to be persuaded to swing one way or the other. As it is, no one seems to know how to mention his name without also calling him the “swing vote.” See here and here, for a few recent examples.

History should not remember Justice Kennedy as a swing voter, a moderate, or a centrist. All of those descriptions fail to see him for what he has been, a major disappointment. He spent his career disappointing some side of the aisle every day. What I wouldn’t give to have another disappointment of a jurist put on the Court to take his place! We need jurists who have no cause, but the cause of liberty, as defined by the Constitution. Jurists whose personal beliefs and opinions are left at home while they handle the one piece of paper that we must all share. Justice Kennedy showed me that the structure of the Constitution whispers its function. He heard the whispers and shared them with us, and for that, I am grateful. As for the future appointment to the Court, all we can hope for are a few Congress men and women who will follow Justice Kennedy’s example, and be disappointments.

Justice Kennedy: Foot Soldier of the Federalism Revolution

Justice Kennedy: Foot Soldier of the Federalism Revolution

Daniel Becker

Justice Kennedy has written quite a few groundbreaking opinions in his career. Undoubtedly his most famous opinions are Lawrence v. Texas and Obergefell v. Hodges, both cases extending Due Process protections to LGBT people. But Justice Kennedy has also made enormous contributions to the revolution in the Court’s understanding of federalism. Justice Kennedy joined the majority repeatedly to prevent the federal government from treating the states as administrative appendages instead of co-sovereigns. He voted to create the anti-commandeering doctrine in New York v. United States, to preserve it in Printz v. United States, and to extend it in Murphy v. NCAA just this year. Justice Kennedy’s views on the subject can be found best in a decision he authored, Alden v. Maine.

In Alden v. Maine, Congress had authorized suits against states in their own state courts if the state violated the overtime provisions of the Fair Labor Standards Act. Maine protested, arguing that Congress had no power to authorize suits against the state of Maine in Maine’s own courts. Justice Kennedy, writing for the majority, sided with Maine in a strongly worded opinion supporting the sovereignty of states. Kennedy wrote that the Constitution protected the sovereign status of the states in two ways, first by reserving a substantial portion of power in the states, second by ensuring that the federal and state governments could act only upon people. The federal government could not act upon the states themselves. The principle that the government could not act upon the states themselves, but could only act upon the people, is an echo of the anti-commandeering doctrine which had been previously announced in New York v. United States.

Additionally, Kennedy tied the protection of state sovereignty to the original constitutional design. Looking at the history of the Eleventh Amendment, which prevents states from being sued in federal courts, Kennedy wrote that “Congress acted not to change but to restore the original constitutional design.” The Eleventh Amendment was a reaction to Chisholm v. Georgia, which allowed the state of Georgia to be sued in federal court. The Eleventh Amendment passed Congress and was ratified within a year. The majority understood the swiftness of passage to mean that the people had a very different understanding of the role of the states in the Constitutionally created federal system than the role of the states as understood by the Chisholm court. Thus, Kennedy provided a historical and originalist basis for state sovereign immunity. Sovereign immunity was not created by the Eleventh Amendment, but instead derived “from the structure of the original Constitution itself.”

Finally, Kennedy relied on precedent to show that the federal government could not save the law by appealing to the Necessary and Proper Clause. The Necessary and Proper Clause gives the federal government the choice of means to carry out its Art. I, §8 powers, but does not authorize them to use unlawful means of doing so. None of the Court’s precedents had ever found that an incidental infringement of a state’s sovereignty was a proper use of the Necessary and Proper Clause. Thus, Justice Kennedy cast his majority opinion as a rediscovery of founding principles instead of the judicial activism charged by the dissent.

Justice Kennedy’s opinion in Alden showed that he was a believer in the argument that the states had a vital role to play in the federal system the Constitution had created, that the Constitution intended them to play a vital role, and that they should be given the dignity and respect they deserved as co-sovereigns with the federal government. As he retires, the federalism revolution he helped usher in is well-accepted, having recently been reaffirmed in Murphy v. NCAA this past term.  While an overlooked area of his jurisprudence, Justice Kennedy should be seen as more than a necessary fifth vote in the federalism revolution which took place during the Rehnquist and Roberts Court.

Welcome from the Editor-in-Chief

law-policy-700x280Welcome to the Wake Forest Journal of Law & Policy’s new blog, De Novo! The idea of De Novo began with the Volume 6 Board of Editors and, along with our new website, was implemented by the Volume 7 Board. With the launch of De Novo, we hope to further the Journal’s mission to introduce and advance discourse consistent with Wake Forest’s motto of “Pro Humanitate” by examining salient topics that explore the intersection of provocative legal issues surrounding public and social policy. The blog will consist of posts written by Journal staff members and editors, Wake Forest students and faculty, and professionals in the legal and academic community. Those interested in publishing on De Novo should contact our Executive Online Editor, Dan Choyce, for details on blog post requirements and submission guidelines.

 

The Journal of Law & Policy is excited to join our sister publications at Wake Forest University School of Law in introducing this new platform to advance scholarly discourse in a concise, timely manner. We will continue to publish two print issues annually that explore broader interdisciplinary topics, as well as our online supplemental publication, Sua Sponte. Thank you for your interest in the Journal and De Novo—we look forward to continuing our tradition of providing high-quality and relevant scholarship to the legal community.

 

–Chris Salemme, Editor-in-Chief