THE TIE GOES TO FREEDOM: JUSTICE ANTHONY M. KENNEDY ON LIBERTY
by Helen J. Knowles. Lanham, Maryland: Rowman & Littlefield, 2009. 312pp. Hardback. $44.95/£30.00/€44.50. ISBN: 9780742562578.
Reviewed by Tobias T. Gibson, Department of Political Science, Monmouth College. Tgibson [at] monm.edu.
With the recent announcement that Justice David Souter is retiring from the United States Supreme Court, there has been a great amount of wordage from journalists and judicial scholars about the type of justice that President Barack Obama will nominate to fill Souter’s seat. There is much discussion about the strength of decisions that the new justice will pen, especially given Souter’s reserved judicial demeanor. However, many court watchers believe that junior justices, like children in days past, are to be seen but not heard. Helen J. Knowles, in her excellent book, offers some insight into how a junior justice can have profound impact on the Supreme Court. Knowles suggests that Kennedy, as a junior justice, made significant jurisprudential arguments when still a junior justice on the Court, and continues to do so today.
Knowles chronicles Justice Anthony Kennedy’s career and jurisprudential views, especially as they relate to three important areas of civil liberties: privacy, race and speech.
Knowles uses the Introduction of the book to suggest that Kennedy’s reputation of writing opinions which are “doctrinally weak” does not do justice to the Justice. Instead, the purpose of this book is “to try to identify some of the most prominent and important philosophical and legal threads that are woven into the cloth from which Justice Kennedy’s jurisprudence is cut” (p.2). Knowles starts from the assertion that Kennedy is a “moderate libertarian.” This assertion stems from Kennedy’s avoidance of radical legal positions, coupled with his belief in diverse views and protection of human dignity.
Importantly, Knowles approaches this study from a perspective related to neo-institutionalism and the strategic model of judicial decision making. Knowles views this as a key element in the book, because like the adherents of these models, she is “interested in asking why justices vote the way they do and how they are constrained and/or influenced by the broad political, historical, and cultural contexts within which they work” (pp.9-10).
In Chapter 1, Knowles begins to attack her overall hypothesis by defining libertarianism, with the assistance of such luminaries and Robert Nozick, Jeremy Bentham, John Locke and John Stuart Mill (whose ON LIBERTY is purposefully part of the title of the current book). Following the definition, the challenge is to see Kennedy’s application of libertarianism. Knowles uses interviews and speeches to convince the reader that Kennedy is a moderate libertarian who believes in tenets of libertarianism, such as toleration and personal responsibility. More importantly, in direct contrast to [*348] Justice Antonin Scalia and failed Supreme Court nominee Judge Robert Bork, Knowles notes that during his confirmation, Kennedy testified to the Senate about his broad understanding of rights that are not specifically enumerated in the Constitution.
The second chapter begins the heart of the book and focuses on Justice Kennedy’s views on the freedom of speech, which, for Kennedy, is particularly sacred because he sees speech as the “beginning of thought.” Knowles introduces this chapter with a quote from Justice Kennedy in INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS v. LEE (1992): “The First Amendment is often inconvenient. But that is beside the point. Inconvenience does not absolve the government of its obligation to tolerate speech” (p.53). This is an important belief for Kennedy and can be seen throughout his defense of speech. Knowles predictably, and correctly, also utilizes Kennedy’s famous concurring opinion in TEXAS v. JOHNSON (1989). The most interesting portion of this chapter, however, is the discussion about Kennedy’s views about the use of “strict scrutiny,” which was first made public in SIMON & SCHUSTER v. CRIME VICTIMS BD. (1991). Kennedy makes the argument, again in a concurrence, that the strict scrutiny test, applied in the opinion of the court, is unnecessary. Kennedy feels this way because he believes that the strict scrutiny test “has no real or legitimate place when the Court considers the straightforward question whether the state may enact a burdensome restriction of speech based on content only” (p.69). Knowles acknowledges that Kennedy’s position toward the freedom of speech is not absolute, but carefully notes also that even when his view is “tempered by the realities of the different cases he has confronted” (p.87), he remains true to his root belief that government should not try to control the thoughts or expression of its citizens.
In the third chapter, Knowles then turns to individual dignity, rather than “membership” in a group, based on race, sexuality or other particular characteristics. Knowles again does a convincing job of illustrating Kennedy’s dedication to libertarian ideals in this chapter. She effectively draws upon ROMER v. EVANS (1996) and LAWRENCE v. TEXAS (2003) to make the point that in this area of law, Kennedy views too much governmental intrusion to be at odds with individual freedom. At issue in ROMER was a Colorado state constitutional amendment that prevented discrimination on the basis of sexual orientation. Kennedy wrote that the amendment was “so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects” (p.110). Similarly, in LAWRENCE, Kennedy takes the Court’s decision in BOWERS v. HARDWICK to task by writing “Bowers was not correct when it was decided, and it is not correct today” (p.116). His reasoning for this is that “Liberty protects the person from unwarranted government intrusions into a dwelling or other private place. . . . And, there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial boundaries” (p.121). [*349]
In the following chapter, Knowles extends the discussion of Kennedy’s aversion to group based characterization of the individual. Here, the focus turns to race. The case at the heart of the discussion in this chapter is METRO BROADCASTING v. FEDERAL COMMUNICATIONS COMMISSION (1990), in which preferential treatment for minority owned communications companies was given in issuing federal communications licenses. Kennedy dissented from the majority opinion which upheld these preferences in support of diversity. Kennedy voiced his preference for strict scrutiny here, which was at odds with the less exacting test employed by Brennan. Kennedy, in writing what one commentator described as an “apocalyptic” dissent, compares the majority opinion to the infamous PLESSY and KOREMATSU decisions. He elaborates on this by stating “[p]erhaps the Court can succeed in its assumed role of case-by-case arbiter of when it is desirable and benign for the Government to disfavor some citizens and favor others based on the color of their skin. Perhaps the tolerance and decency to which our people aspire will let the disfavored rise above hostility and the favored to escape condescension” (p.137). Knowles presents an impressive discussion of several cases here to make the point that Kennedy’s real concern is that, by focusing on group characteristics, the individual’s freedom is jeopardized because the individual cannot have all of the characteristics of the group.
The fifth chapter focuses on abortion cases, with a particular nod to PLANNED PARENTHOOD v. CASEY (1992) in which Kennedy coauthored the opinion of the Court with Justices O’Connor and Souter. Because Kennedy’s view is that there is no clear boundary of where individual liberties lie with regard to abortion, Knowles makes the argument that Kennedy’s understanding of abortion rights is based on the “relationships between (1) libertarianism and abortion and (2) libertarianism and personal responsibility” (p.163). Knowles supports this, observing that, while Kennedy and the other authors note the importance of the woman’s liberty to have an abortion, the decision is not “isolated in privacy.” This observation allows Knowles to come full circle from the first chapter, where she defines and describes Kennedy’s limited libertarian view.
The conclusion serves to reiterate the points made in the prior chapters. Knowles also uses this opportunity to note the political importance of understanding Kennedy’s views. For example, in the first term since John Roberts and Samuel Alito took their seats on the bench, Knowles reports that Kennedy was the sole justice to be in the majority in all 5-4 decisions. Perhaps the best indication of Knowles’ view of Kennedy on the current Court is the title of the concluding chapter: “It all Depends on Justice Kennedy.”
In THE TIE GOES TO FREEDOM, Knowles utilizes several sources. The primary sources come from Justice Kennedy’s opinions written during his tenure on the High Bench. Additionally, Knowles uses material from Kennedy’s speeches and written articles, and interviews he has given. Another strength of this work is Knowles’ ability to buttress her arguments between and among chapters. Although the chapters [*350] facially are unique, there are clear connections through the book. Additionally, Knowles does a wonderful job of displaying that Kennedy is not inconsistent with his jurisprudence or that he falls victim to the “Greenhouse Effect” by trying to please the reporters on the Supreme Court beat.
This book serves an important purpose. While Knowles focuses on Justice Kennedy, because of his position on the Supreme Court as the median justice, THE TIE GOES TO FREEDOM is also suggestive of the policies we are likely to see coming from the Court for years to come. Knowles’ work packs a punch and could be considered required reading for any number of undergraduate and graduate courses, including the typical constitutional law and jurisprudence classes, but also those related to the institution of the Supreme Court. This book is one of the more interesting and well written books that I have read in recent years.
BOWERS v. HARDWICK, 478 U.S. 186 (1986).
INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS v. LEE, 505 US 672 (1992).
KOREMATSU v. US, 323 U.S. 214 (1944).
LAWRENCE AND GARNER v. TEXAS, 539 U.S. 558 (2003).
METRO BROADCASTING v. FEDERAL COMMUNICATIONS COMMISSION, 497 U.S. 547 (1990).
PLESSY v. FERGUSON, 163 U.S. 537 (1896).
PLANNED PARENTHOOD v. CASEY, 505 U.S. 833 (1992).
ROMER v. EVANS, 517 U.S. 620 (1996).
SIMON & SCHUSTER v. CRIME VICTIMS BOARD, 502 U.S. 105 (1991).
TEXAS v. JOHNSON, 491 U.S. 397 (1989).
© Copyright 2009 by the author, Tobias T. Gibson.
Labels: Vol. 19 No. 5