Law, memoir, and the mystery of Justice Anthony Kennedy’s writing

The Supreme Court docket justice memoir, so profitable for its authors, tends to be a lower than illuminating style. Justice Neil Gorsuch’s A Republic, If You Can Hold It reiterated the case for originalism and tried as an instance why he was a worthy successor to Justice Antonin Scalia. Justice Amy Coney Barrett’s Listening to the Regulation recited highschool civics classes. And in Pretty One, Justice Ketanji Brown Jackson described her household historical past and life intimately.

The promise of a justice telling his or her life story is that it’s going to assist us additional perceive the jurisprudence of the one that is shaping the trail of the legislation. However, fact be advised, every of those books does little greater than buff the general public picture of the decide offered at their hearings.     

Therefore, the nice surprises in studying Justice Anthony Kennedy’s memoir, Life, Regulation & Liberty, revealed final fall and promoted by Kennedy in an interview this yr. Not like so many different judicial memoirs, the retired justice gives a revealing portrait of the one that wore the gown. Simply as shocking is the revelation that Kennedy loves literature – which, in his phrases, not solely “doc[s] human expertise but additionally” seeks “to edify it” – and gracefully incorporates literary references all through the textual content.

On the primary web page of the prologue, as Kennedy explains that his “view of the world was outlined by the West,” he quotes from Willa Cather’s O Pioneers! to help his perception that the land shapes the individuals as a lot as individuals form the land. Equally, a Wallace Stegner citation at first of half one suggests the supply of Kennedy’s inveterate, old style optimism: “One can’t be pessimistic concerning the West,” Stegner wrote. “That is the native residence of hope.” 

In describing Sacramento, the place he grew up, Kennedy cites to authors as various as Mark Twain, Langston Hughes, and Ngũgĩ wa Thiong’o on the significance of rivers in defining a spot. Kennedy observes that the town is on the confluence of the American River “coming down from the Sierra Nevada mountain vary” and the Sacramento River, to which the American pours in and flows south and west to San Francisco Bay. His description flows effortlessly.     

Kennedy left Sacramento to attend Stanford and Harvard Regulation College then started to follow legislation at a San Francisco legislation agency. In 1963, whereas he was an affiliate at that agency, his father died of a coronary heart assault on the age of 61. Shortly thereafter, Kennedy and his spouse, Mary, returned to Sacramento in order that he might take over his father’s legislation follow.

In his chapter on that interval, Kennedy refers to James Gould Cozzens’ The Simply and the Unjust – an ideal literary reference as an instance what it was prefer to follow legislation in a small city, which is what Sacramento felt like for Kennedy. “Sacramento’s main attorneys and a lot of the judges had recognized my father and our household, in addition to Mary’s household,” Kennedy writes. “They went out of their approach to present that they had been happy {that a} youthful lawyer with these ties might proceed the traditions of Sacramento’s bar.” Kennedy was a wonderful lawyer however nonetheless acknowledges the help he obtained from the “old-boy community” – and acknowledges that its help was not out there to all however solely “those that had been a part of it.” 

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Maybe extra shocking than Kennedy’s engagement with the world of literature, nevertheless, is the way it contrasts together with his writing as a justice. In his memoir, Kennedy’s writing about his life is considerate and self-aware, exact, and stylish – at occasions even minimalist. As a justice, Kennedy’s prose may very well be sweeping and was usually criticized as grandiose and imprecise.

Exhibit A is from Deliberate Parenthood of Southeastern Pa. v. Casey, the 1992 abortion determination by which the court docket upheld somewhat than overruled Roe v. Wade. Elaborating on constitutional safety for sure private selections, Kennedy and fellow Justices Sandra Day O’Connor and David Souter wrote: “On the coronary heart of liberty is the correct to outline one’s personal idea of existence, of that means, of the universe, and of the thriller of human life.” Whereas some celebrated Kennedy’s capacious understanding of liberty, others, notably Scalia, mocked it as so broad and obscure as to be devoid of authorized pressure or that means. Including insult to damage, Scalia tarnished the sentence by later referring to it because the “famed sweet-mystery-of-life passage.”

Undaunted, Kennedy repeated these similar phrases in Lawrence v. Texas, the 2003 determination by which the court docket overruled Bowers v. Hardwick, and invalidated a Texas legislation criminalizing intimate sexual conduct between two individuals of the identical intercourse. In his majority opinion, Kennedy additional added that “[f]reedom extends past spatial bounds” and that “[t]he immediate case entails liberty of the individual each in its spatial and extra transcendent dimensions.”

Not surprisingly, Kennedy and Scalia squared off once more within the same-sex marriage case, Obergefell v. Hodges, which Kennedy started with sweeping language on the “guarantees” of liberty and the flexibility of “individuals, inside a lawful realm, to outline and specific their id.”Scalia’s dissent was maybe essentially the most disparaging that he ever lodged at one other justice:

If . . . I ever joined an opinion for the Court docket that started: “The Structure guarantees liberty to all inside its attain, a liberty that features sure particular rights that permit individuals, inside a lawful realm, to outline and specific their id,” I’d disguise my head in a bag. The Supreme Court docket of america has descended from the disciplined authorized reasoning of John Marshall and Joseph Story to the paranormal aphorisms of the fortune cookie.

And though Scalia was essentially the most acerbic critic of Kennedy’s writing, he was not alone. Adam Liptak, now chief authorized affairs correspondent for the New York Occasions, famous in 2011 that Kennedy’s “opinions can meander.” Professor Eric Berger, who has written about judicial determination making in constitutional circumstances, in 2019 described Kennedy as “essentially the most inscrutable of justices.” Professor Michael Dorf, a former legislation clerk for Kennedy who defended the justice’s “hovering rhetoric” in Obergefell, acknowledged that often Kennedy’s judicial opinions may very well be “windy and even pompous.”

How, then, will we reconcile the modest but elegant prose of Life, Regulation, & Liberty with the oft-criticized sweeping rhetoric of his judicial opinions?

The reply, I consider, follows from Kennedy’s position in every context. As a justice, Kennedy wrote legislation – actually, in lots of circumstances, as he so usually was the writer of the bulk opinion. Accordingly, Kennedy penned his selections to be authoritative, and, in doing so, he meant them to be decisive and conclusive, and, from time to time, inspiring and majestic. The rhetoric in Kennedy’s judicial opinions was knowledgeable by the values that formed him: his optimism and patriotism and his confidence in courts and the rule of legislation. The voice in Justice Kennedy’s opinions was that of the legislation, not merely the musings of Anthony M. Kennedy of Sacramento, California.

In his memoir, against this, Kennedy makes use of a really completely different voice to put in writing about himself somewhat than for the very best court docket within the nation. As an writer accounting for his life, Kennedy is completely human – gracious, personally modest, and effectively conscious that every of us is fallible. This voice is extra private and exact, and due to that extra convincing. 

It’s, in fact, ironic that the judicial rhetoric of Kennedy’s opinions may very well be much less compelling than the private voice of his memoir. Maybe extra ironic is Kennedy’s failure to acknowledge this. Within the chapter on homosexual rights in his memoir, for instance, Kennedy states that the justices “should aspire to put in writing so that every one” – not simply the events – “can perceive, and we hope, be persuaded” that the court docket correctly reached its determination. Right here, Kennedy might have been impressed by Chief Justice Earl Warren’s opinion in Brown v. Board of Training in 1954, by which the court docket held that segregation in public colleges was unconstitutional. One of many “strengths” of Warren’s opinion, he writes, is that it was “neither intricate, nor prolonged, nor written in lofty rhetoric,” and will “be understood by these with no formal authorized background.”   

Certainly. As an alternative of trying to invoke the majesty of the legislation in his judicial opinions and sounding high-flown and ornate, Kennedy might have been extra persuasive as a jurist by drawing on his love of literature and writing in a approach that reminded all of us that legislation is a human enterprise.