Justice Anthony Kennedy

  • June 30, 2015
    Guest Post

    by Sam Kleiner, a fellow at the Yale Law Information Society Project 

    With his landmark opinion in Obergefell v Hodges, Justice Anthony Kennedy cemented his legacy as a gay rights icon. “He will be remembered for these decisions perhaps more than any other,” said Camilla Taylor, counsel and director of Lambda Legal’s marriage project. What makes this all the more remarkable, is that Justice Kennedy wasn’t supposed to be a justice at all. He was Reagan’s more conciliatory choice, the one who was “popular with colleagues of all political persuasions,” after the failed nomination of the far more right-wing Robert Bork.

    The effort against Bork has been immortalized in Senator Edward Kennedy’s speech on “Robert Bork’s America.” "To Bork" has entered the American lexicon as a hyperbolic attack on a good person.

    The reality, however, is that Bork was outside the legal mainstream. Whereas Senator Kennedy led an effort to skewer Bork, the chairman of the Senate Judiciary Committee led a far more substantive critique of Bork’s extremism that proved pivotal in the fight over the nomination. That senator was Joseph Biden.

    Bork was nominated with impeccable credentials- a professor at Yale Law School and a Judge on the D.C. Circuit court of appeals. The Senate had traditionally questioned the qualifications of a nominee but an inquiry into their judicial philosophy had not been done in a full-throated manner. Bork, however, had built his academic career disparaging an array of civil rights cases and Biden thought it was necessary to dig in on what exactly this nominee’s views of the Constitution were and what he would do on the Court.

    While others wanted Biden to go after Bork’s personal life, he took the higher road. “When confronted with a request to subpoena Judge Bork’s video rental records in a search for possible pornography, Mr. Biden refused,” noted Jeff Rosen (then a Biden intern).

    Instead, Biden went into an in-depth hearing on Bork’s understanding of the Constitution. Biden, as Rosen noted, focused the “questioning on Judge Bork’s substantive views about the right to privacy." In 1965, the Court in Griswold had ruled that a law banning the use of contraceptives by a married couple was unconstitutional as a violation of the “right to marital privacy.” Professor Bork had built his career criticizing decisions like Griswold and Biden used the hearings as a way to highlight just how extreme Bork was.

    In the hearings, Biden, at some length, prodded Bork on his argument against Griswold. Bork gave “weak-kneed statements from a man known for verbal muscle,” as one historian notes.  Biden’s objective was not to disprove Bork’s views explicitly but he was able to discredit him in the court of public opinion. The strategy worked.

    The concern raised about Bork was that he had always been opposed to the development of new liberties and was unlikely to be a defender of liberty on the Court. “As one imagines the kinds of great new issues that might come before the court in the years ahead, there surely are reasons to fear that on these great issues, Judge Bork will not be there when it counts,” testified Bork’s Yale Law colleague Paul Gewirtz at a Biden-led hearing.

  • June 25, 2015

    by Jeremy Leaming

    Following today’s Supreme Court opinion in King v. Burwell, ACS President Caroline Fredrickson moderated a briefing about the outcome in the healthcare case featuring Erwin Chemerinsky, founding dean of the University of California, Irvine School of Law, and Elizabeth G. Taylor, executive director of the National Health Law Program.

    Chief Justice John Roberts writing for the 6-3 majority concluded in part that the intent of Congress mattered a lot and that the Affordable Care Act did not include a provision to destroy the law’s aim to expand health care coverage. “Congress passed the Affordable Care Act to improve health insurance markets, not destroy them,” Roberts wrote for the majority, joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

    In the call Chemerinsky noted that while the chief justice’s opinion relied on some of the plain language of the ACA, the majority also relied on context and the intent of Congress.  Beyond noting Justice Antonin Scalia’s “sarcastic” dissent in King v. Burwell, Chemerinsky said Scalia failed to advance his long-held view that only the plain language of the law should rule the day.

    “It is Justice Scalia who has been so outspoken in saying, ‘We only look at plain language, we don’t look at things like legislative history.’ But a majority of the Court has never taken that position,” Chemerinsky said. “Just because Justice Scalia says it loudly and often still does not make it a majority approach from the Supreme Court.”

    Overall the high court interprets statutes in context. Rarely has the court interpreted statutes on text alone, Chemerinsky said.

    Taylor agreed, saying that the scheme of the health care reform law was to provide health insurance across the board.

    “I think this is a great day, it’s a relief to have this challenge over with,” Taylor said.

    Taylor, however, added that more work lies ahead to expand healthcare coverage, noting that many states have not expanded Medicaid under the ACA, leaving millions without the ability to receive quality healthcare coverage. 

    Chemerinsky also lauded Roberts and Kennedy for rising above the partisanship that has surrounded the Affordable Care Act since its consideration in Congress and after its enactment in 2010. Chemerinsky, author of The Case Against The Supreme Court, was pleased the chief justice and Kennedy were able today to transcend the partisanship and uphold a law intended to better the lives of millions of Americans.

    Though Chemerinsky cautioned against reading too much into Roberts’ votes to uphold the Affordable Care Act against two major challenges.

    Instead, Chemerinsky said there is something else underlying the chief justice’s work, which could help explain his votes in the cases challenging major provisions of the ACA.

    “I think Chief Justice John Roberts’ inclinations are much more pro-business than pro-states’ rights,” Chemerinsky said. “Both decisions benefit business, the insurance business. I just think he’s less inclined to accept the states’ rights arguments than other conservatives.”

    Audio of the call is available here.

  • April 28, 2015

    by Caroline Cox

    Today, the Supreme Court hears oral arguments in the same-sex marriage cases. In The New York Times, Joseph Landau explains why Chief Justice John Roberts may support same-sex marriage and argues that it “would actually be the more prudent and moderate path.”

    David G. Savage discusses in the Los Angeles Times how Justice Anthony Kennedy is “poised to be the crucial vote in deciding whether gay marriage will be a constitutional right nationwide.”

    At Bloomberg View, Noah Feldman argues that while Justice Kennedy may not clearly show his hand today, the Supreme Court will rule in favor of same-sex marriage.

    Richard Wolf of USA Today profiles Mary Bonauto, a key player in the legal fight for marriage equality and the lawyer who will argue for same-sex marriage before the Supreme Court.

    David A. Gans writes at the Constitutional Accountability Center’s Text & History Blog that a new bill in Congress seeks to strip federal courts of the ability to hear any cases pertaining to marriage, which would challenge “key aspects of our constitutional structure.”

  • October 2, 2014
    Guest Post

    by Kareem U. Crayton, associate professor of law, the University of North Carolina School of Law

    Voting has been described by the Supreme Court as “preservative of other basic civil and political rights.” So when law and policy leave voting insecure, the core project of governance itself faces grave risk. 

    During oral arguments preceding the June 2013 decision to invalidate a key feature of the Voting Rights Act in Shelby County v. Holder, Justice Anthony Kennedy dismissed concerns that voting would become less secure for racial minorities. Even absent Section 5’s preclearance oversight for states with egregious histories of discrimination, Kennedy asserted, Section 2 of the law would allow citizens to use traditional litigation to block discriminatory laws. A year into the post-Shelby County era, we have initial evidence of how this litigation has fared in practice.

    One test of Section 2 is playing out in North Carolina, where this week the 4th Circuit Court of Appeals ruled in favor of the North Carolina NAACP and allied groups in their challenge of a state law that is widely recognized as the nation’s most restrictive. The Court’s decision ordered a preliminary injunction for two provisions of the law – the elimination of same-day registration, and the prohibition of out-of-precinct ballots from being counted. The decision means that these rules will not apply in the November election, contrary to an earlier decision by a U.S. District Court to deny this preliminary injunction. A full trial regarding the merits of the law will go to court next July.

    According to the 4th Circuit, “The district court got the law plainly wrong in several crucial respects" in assessing whether North Carolina’s measure, known as H.B. 589, was likely in violation of Section 2. They continued, "When the applicable law is properly understood and applied to the facts as the district court portrayed them, it becomes clear that the district court abused its discretion in denying plaintiffs a preliminary injunction and not preventing certain provisions of House Bill 589 from taking effect while the parties fight over the bill's legality."

    North Carolina’s H.B. 589 enacts multiple changes to the state’s election system. It eliminates same-day voter registration, prohibits out-of-precinct ballots from being counted, shortens the early voting period by a week, eliminates a successful pre-registration program for 16- and 17-year-olds, prohibits counties from extending Election Day poll hours to account extraordinary circumstances (such as long lines), permits poll observers to challenge voters, and implements a strict photo ID requirement.

  • June 2, 2014
     
    Today, the Obama administration will announce new environmental regulations that will cut carbon pollution from power plants by 30 percent. The regulations represent the “strongest actions ever taken by the United States government to fight climate change.” Coral Davenport at The New York Times explains how the action will affect environmental health and its implications for the American electricity industry.
     
    Pro-choice activists are working to counter the growing anti-abortion legislation sweeping the country as many expect the issue to reach the Supreme Court next term. Sophie Novack and Sam Baker at The National Journal explain why, if the issue reaches the Court, pro-choice activists may be “on the verge of a massive gamble.”
     
    At Bilerico, John M. Becker discusses Justice Anthony Kennedy’s response to the National Organization for Marriage’s recent efforts to block same-sex marriage in Oregon.
     
    A six-year old girl is recovering from being a victim of a stray bullet while playing at a local Washington, DC playground. NPR’s All Things Considered addresses how gun violence continues to trouble America’s inner cities.