The Shifting Middle: Olympia Snowe, Anthony Kennedy, and What It Means to be a Moderate in 2012

Humility is a governing doctrine of moderation at the Court because the judge's particular political beliefs are irrelevant: if long-held precedent says x, then stare decisis (roughly, Latin for "to stand by that which is decided") says you should not overturn it unless there is a really compelling reason to do so. Being a humble jurist is not just listening to your forebears; it is also leaving the next generation room to grow by only deciding cases narrowly and directly addressing the legal question at hand in the least disruptive way. That is, if you get the same just outcome by either (a) tossing out 150 years of precedent or (b) carving out a narrow exception to that precedent, you should choose (b).

01cnd-oconn_184A number of Supreme Court scholars think that this describes Justice O'Connor's tenure quite well. Her swing vote tended to uphold precedent, even in controversial cases, much more often than not. In Planned Parenthood v. Casey, Justice O'Connor wrote a plurality opinion that upheld the core of Roe v. Wade, but accepted certain state limits on abortion as long as they did not impose an "undue burden."

And, in Lawrence v. Texas, Justice O'Connor tried to have it both ways in her concurrence: she wanted to retain Bowers v. Hardwick by dismantling Texas's anti-sodomy law as a violation of the Equal Protection Clause rather than the Due Process Clause. In these and a litany of other cases too numerous to discuss here, Justice O'Connor sought fidelity to the Court's institutional memory through respect for precedent and a humble view of her role.

Justice Kennedy's predecessors did not fit the O'Connor "moderate" mold. Justice Byron White, who wrote the majority in Bowers, was a Kennedy-appointee, a liberal when it came to economic legislation, but a traditionalist in the face of growing social justices movements for women and gays. Liberalism matured; he did not. Justice Hugo Black, a New Deal liberal, thought there was no such thing as a right to privacy and wrote vociferous dissents in student speech and sexual liberation cases. And, yet, he believed in universal incorporation of the Bill of Rights to the states (something even liberal lions like Justice William Brennan didn't touch). Justices White and Black are moderates in the mold of the political quiz: Type in your views, however conservative or liberal they might be, tell us how important each of those views are, and we'll spit out a number along 1 to 100. If you're near 50, you're a moderate.

Powell_Lewis_F_WEBAnd, Justice Powell, Justice Kennedy's immediate predecessor, was yet another type of moderate: the compromiser. For example, in Regents of the University of California v. Bakke, Powell wrote alone to offer a compromise between Justice Brennan's majority, which upheld affirmative action programs under a lenient judicial test, and Justice John Paul Stevens's dissent, which rejected most affirmative action programs at the university level. Powel wanted strict scrutiny applied to affirmative action programs, but was clear that some programs would survive that high hurdle. Powell also dissented in Furman v. Georgia, which invalidated capital punishment, but, according to his biographer, was the key force behind Gregg v. Georgia, which reinstated death penalty statutes four years later as long as they contained significant due process safeguards.

Justice Kennedy's moderation does not seem to fit any of these models. He wrote Lawrence v. Texas and seems to have grave concern for state interference with personal liberty, but just released a decision in Florence v. Board of Chosen Freeholders upholding the use of strip searches on uncharged arrestees without probable cause. A number of scholars have suggested that Kennedy simply assumed the responsibility of the moderate swing vote after Justice O'Connor retired not because of any particular moderation in his ideology, but because of his institutional belief in the value of balance on the Court. In his first few terms on the Court, he was second only to Justice William Rehnquist in siding with the conservative bloc. Yet, with Justice O'Connor gone, he has upheld the Clean Water Act, rejected unilateral executive power, and upheld federal regulation of interstate commerce.

It is beyond the scope of this column to analyze justice decision-making in great detail. There are fascinating studies that show, for example, the rates at which different justices are in the majority, uphold precedent, change their minds, or make so-called "conservative" or "liberal" decisions as defined by the politics of the day. Suffice it to say that these studies and our brief review of some notable Supreme Court moderates since the 1960s suggest that there is no one definition of a moderate jurist.

Yet, the term bandies about indiscriminately. Media personalities see four conservatives, four liberals, and one "moderate" on the Court. Legal academics are not much better: Nearly 550 law review articles on Westlaw (the online research tool for lawyers) call Justices Kennedy or O'Connor the "moderate" justices on a "polarized" or "divided" Supreme Court. It seems, then, that the only honest description of a moderate jurist is one who roughly half the time sides with the known conservatives and roughly half the time sides with the known liberals, regardless of any overarching doctrine of moderation.

Consider the Martin-Quinn Scores, a statistical method named for Professor Andrew D. Martin of the Washington University School of Law and Professor Kevin M. Quinn of the Berkeley School of Law that analyzes political views at the Supreme Court. By looking at how often judges vote with one another, among other variables, Martin-Quinn not only paints a year-by-year picture of the Court's political position, but it also identifies the gulf between each justice as to their frequency of siding with each bloc, thus identifying the reliable liberals, reliable conservatives, and true swings. Under this view, Justice Kennedy is now the undisputed swing vote, like Justices O'Connor and Powell before him.

But, the evidence stops there: There appears to be no legal doctrine to explain a governing theory of moderation at the Court. This is lamentable. Respect for precedent and humility have the great benefit of protecting the institutional respect of the Court, and we should strive for the judicial ideal that of judges who are above politics, faithfully interpreting the law honestly and consistently. If Martin-Quinn gives us the best elucidation of moderation at the Court, that ideal is lost.

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Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.

Comments

  1. anony6 says

    I will definitely be re-reading this article once one of the landmark gay rights cases make it to the Supremes. Thanks Ari for you usual high quality insight and analysis.

    I feel like the DOMA (1st circuit) and Prop 8 cases are so strong that even conservative judges should rule in favor of equality. Some conservative judges have already done so. But I feel like Alito, Scalia, and Thomas are so politically entrenched that they are beyond considering any legal arguments. As if their minds are already made up, and they will find a reason in the law to justify their decision. As opposed to using to law to come to a decision.

    Has any studies beyond tea leaf reading been done to analyze what influence the politics of the day has on the court’s decisions as a whole? And by politics I mean the president, the congress, the activities of the justice department, the media, and grass roots activities. It would be great if such a study also analyzes which of these political factors have the greatest influence on conservative, liberal, and so called moderate judges.

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