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June 27 2018

What do Justice Kennedy's concurrences mean for the future of the Supreme Court?

via The Hill
by Erin Hawley

High above the Justices of the United States Supreme Court sit two friezes containing many of history’s most famous law-givers. The South Wall Frieze highlights Solomon, King of Israel whose name — after the baby-splitting case — became synonymous with judicial wisdom.

King Solomon famously gave instructions to his son describing the ways in which he should live and govern. The broad principles contained within Proverbs still epitomize wisdom today.  

A series of concurrences written these last few weeks by Justice Kennedy have a Solomonic-flair. In each of these unnecessary concurrences (Justice Kennedy agrees in full with the majority opinion), the Justice speaks in broad legal principles and about what good governance looks like — suggesting that he might have his own successor in mind.

In Trump v. Hawaii, Justice Kennedy joins the Court’s opinion “in full.” He agrees that the president lawfully exercised the broad discretion given him by Congress under the Immigration and Nationality Act and that substantial deference is owed the Executive in foreign affairs.

In paragraphs that wax Solomonic, however, Justice Kennedy also writes separately to suggest there may be cases where an executive action is subject to review if based solely on animus. Justice Kennedy is key to point out that, even where a government official’s action is not reviewable, good conduct is incumbent. Officials must adhere to the Constitution’s guarantees of freedom of speech and religion. A constitutional oath has been taken, after all. His last line sounds a broad Proverbs-like principle:

“An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”

In NIFLA v. Becerra, Justice Kennedy again “agrees with the Court in all respects.” Yet he writes separately to underscore his concern that the California law requiring pro-life centers to advertise state-funded abortions likely constitutes viewpoint discrimination. The design and structure of the law targeted pro-life entities and compelled them “to contradict their most deeply held beliefs.” It was an example of the serious threat posed when “government seeks to impose its own message in the place of individual speech, thought, and expression.”

The California law was also celebrated by legislators as part of California’s legacy of “forward thinking.” Justice Kennedy was quick to disagree, again speaking in broad principles, as if to posterity: The First Amendment prevents government from forcing individuals to express a message contrary to their deeply-held convictions. At its most basic, freedom of speech “secures freedom of thought and belief.”

In Pereira v. Sessions, Justice Kennedy again “agree(s) with the Court’s opinion and join(s) it in full.” Yet he writes a lone concurrence calling on the Court to reconsider so-called Chevron deference, a doctrine which requires federal courts to defer to administrative agencies rather than interpret statutes in the first instance.

Justice Kennedy suggests that the doctrine results in an abdication of the judicial role to interpret federal law. This particular concurrence reads like the righting of a wrong — something one might want to do if their tenure is limited.

It is not unusual for the Court to write in ways that suggest to a lower court the way it thinks an unresolved issue should come out. But it is more unusual for a concurrence to do so — and three such open letters at the end of the term start to look a lot like parting instructions.

Erin Hawley is a legal fellow at the Independent Women's Forum, an associate professor of law at the University of Missouri, and a former clerk to Chief Justice John G. Roberts Jr.

Independent Women's Forum is an educational 501(c)(3) dedicated to developing and advancing policies that aren’t just well intended, but actually enhance people’s freedom, choices, and opportunities. IWF is the sister organization of the Independent Women’s Voice.​
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