Justice Kennedy: Big Ideas, Little Packages

At the conclusion of a semester spent discussing a mountain of Supreme Court opinions in my Constitutional Law class, one of my students asked a few days ago which Justice I identify with most closely.  The question caught me off guard; I’m not sure I’ve ever really thought about that before.  After a moment’s hesitation, and to my surprise, I found myself answering “Justice Kennedy.”

I’m no less exasperated by Kennedy’s Delphic pronouncements than the next guy, and I disagree strongly with many of his specific votes.  (For instance, his approval of life without parole for a first-time drug offender in Harmelin v. Michigan comes to mind.)

But here’s why I identify with Kennedy anyway: I think that he brings to the task of judging a particular moral vision that resonates a great deal with me.  To be sure, this moral vision often seems at war in Kennedy’s heart with the values of judicial modesty and restraint (competing values that also tend to resonate with me).  The tension contributes to the frustrating character of many of his opinions, in which high-minded rhetoric is combined with holdings that seem to get narrower and increasingly equivocal the more closely you examine them.

Consider, for instance, Kennedy’s opinion for the Court in Graham v. Florida (the subject of an article on which I have been working for the past few months).  


In Graham, an Eighth-Amendment decision, the Court banned the sentence of life without possibility of parole for juvenile offenders convicted of non-homicide offenses.  Although the Court could have left the significance of juvenile status to be determined on a case-by-case basis, the Court chose instead to adopt a categorical rule, even at the expense of precluding LWOP for some juvenile offenders who really deserve it.

Kennedy defended the Court’s approach by noting that “a categorical rule gives all juvenile non-homicide offenders a chance to demonstrate maturity and reform.”  This phrase, and the couple of paragraphs elaborating on the idea in Kennedy’s opinion, provide a nice point of entry into the Justice’s moral vision.  Here are my thoughts on the passage from my article-in-progress:

The precise choice of words may be telling. The Court speaks of “demonstrat[ing]” maturity and reform. A “demonstration” implies a social act — there is an audience and a judgment of the quality of the act. The Court does not contemplate that the reformed offender will enjoy his newfound maturity in isolation. Rather, maturity and reform are pathways to what Justice Kennedy, in another setting, called “ordinary civic life in a free society.”

Graham seems to embrace a particular vision of human flourishing — a vision that is essentially social and centered on the individual’s moral relationships with others. Consider, for instance, the Court’s explanation of why LWOP raises the “same concerns” as the death penalty: “Life in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope.” The four-way association is striking, with the Court linking death, hopelessness, physical separation from society, and moral separation from society (no reconciliation). A life of social exclusion, the Court suggests, is hardly a life at all.

While such exclusion may be imposed, it can and should be an occasion for the offender to make atonement for his crimes, and not merely to await release or death. The real evil of LWOP is that the sentence eliminates incentives for atonement and precludes the possibility of reconciliation with society:

“Terrance Graham’s sentence guarantees that he will die in prison without any meaningful opportunity to obtain release, no matter what he might do to demonstrate that the bad acts he committed as a teenager are not representative of his true character, even if he spends the next half century attempting to atone for his crimes and learn from his mistakes. The State has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law. This the Eighth Amendment does not permit.”

While the Court’s express focus here is on the moral status of the offender, the Court’s reasoning also seems implicitly premised on the moral responsibility of society to respond to efforts made by the offender to achieve atonement. In a moral-relational view of human flourishing, we must remain open to the possibility of reconciliation with those who have wronged us; otherwise, we stunt our own moral development and capacity for fulfillment. Fear and hatred can be prisons, too — Graham seems at some level an effort to remind us of this great truth. Providing offenders with a realistic path back to “ordinary civic life in a free society” may be as much for our benefit as theirs.

There is a lot in this vision that resonates with my own proposal for an atonement-based model of earned release from prison, as described in this article.  Read for all its worth, some of Kennedy’s language might have important implications not only for the permissibility of LWOP for any offender, but also for the administration of prison and parole.

Kennedy’s moral vision, with its emphasis on social inclusion, relationships, dignity, and equality, also comes through in his work outside the Eighth-Amendment context, such as in the homosexual-rights cases of Romer v. Evans and Lawrence v. Texas.  (I posted on parallels between Romer and Graham here.)  One can also see traces of the vision in his coauthored opinion in Casey v. Planned Parenthood.

But then there are those competing urges to stick to precedent, defer to legislatures, defer to states, and issue decisions no broader than necessary to resolve the immediate dispute.

It is Kennedy’s (incomplete) accommodation of these urges that makes Graham and many of his other opinions so exasperating.

For instance, before even getting into the moral reasoning that makes Graham so compelling, Kennedy spills a great deal of ink trying to support the highly dubious proposition that a national consensus exists against LWOP for juvenile non-homicide offenders.  It is hard to see the point of this exercise but as a gesture in the direction of precedent, an effort to provide reassurance that not very many state-court judgments will actually be affected by the ruling, and a gift to skeptical lower-court judges looking for excuses to avoid extending the proportionality principles on which Graham rests to a wider universe of cases.

Consider, also, how narrow and equivocal Graham‘s holding is even as to the 120-or-so offenders whose cases clearly fall within Graham‘s ambit.  Kennedy essentially leaves it to the states to decide for themselves how they are going to provide meaningful opportunities for juvenile offenders to demonstrate reform and obtain release from prison.  This is an invitation for states to develop such stingy approaches to parole release, as well as to the provision of the sorts of rehabilitative opportunities that can make a convincing case for release, that very few of the theoretically affected inmates may see any practical benefit from the ruling.

There are parallels, I think, with Kennedy’s refusal to recognize sexual orientation as a “suspect classification” in Romer and his failure to articulate a new fundamental right in Lawrence.  As in Graham, Kennedy selected narrow and uncertain grounds for the decisions, minimizing overt conflict with precedent and leaving state legislatures and lower-court judges with much freedom to maintain established laws and practices.  (I made a similar set of observations regarding Kennedy’s work in the area of ineffective assistance of counsel in this article.)

Although it is sometimes frustrating that Kennedy does not act more boldly, I do feel some sympathy for his restraintist instincts, which may help to preserve the Court’s legitimacy even as it is issuing politically controversial decisions.

It may even be the case that an incremental, go-slow approach to reform proves most effective over the long run.  For instance, the Court’s first assault on the death penalty, in its 1972 Furman v. Georgia decision, proved too bold and provoked a massive political backlash, leading to a new generation of death-penalty statutes and (after the Court approved many of the new laws in Gregg v. Georgia in 1976) a dramatic ramping up of the American death penalty for two decades.  By contrast, the more incremental approach to death-penalty reform that the Court (with Justice Kennedy at the helm) embarked upon in 2002 in Atkins v. Virginia has not provoked much of a backlash and may perhaps have contributed modestly to the declining frequency of death sentences and executions that the nation has witnesses since the mid-1990s.

Similarly, while Romer and Lawrence may have fueled a certain amount of anti-gay backlash, that backlash seems already to have peaked and subsided.  Although the two decisions failed to lay a strong legal foundation for a constitutional right to same-sex marriage, many states have now decided to adopt that reform anyway.  If the Court now recognizes a constitutional right to same-sex marriage in the pending case of Hollingsworth v. Perry, that decision may prove much more durable than if a similar ruling had been made in the RomerLawrence time period.