Jeffrey Rosen has written a scathing critique of Anthony Kennedy in the latest issue of the The New Republic. He claims that “Anthony Kennedy seems most at home when he is lecturing others about morality.”

Here are some interesting excerpts:

The grandiosity of Kennedy’s self-image was on full display in a 2005 interview he gave to the Academy of Achievement, a group that seeks to inspire youth by promoting virtues like courage and integrity. In his interview, Kennedy made clear that he thinks the Court plays a more important role in American life than Congress. “You know, in any given year, we may make more important decisions than the legislative branch does–precluding foreign affairs, perhaps,” he said. “Important in the sense that it will control the direction of society.” When asked to name the most important qualities for achievement in his field, he replied: “To have an understanding that you have an opportunity to shape the destiny of the country.” And that is exactly what Anthony Kennedy has set out to do.

His performance in Bush v. Gore was similarly melodramatic. Kennedy initially joined the four liberals who wanted to allow the Florida recount to continue, but, after a brief show of agonizing, he changed his mind. This left Justices Breyer and Souter–who thought they could win Kennedy’s vote–with their hands extended, played for dupes. In the per curiam opinion itself, which Kennedy drafted on his own, his muddy writing style and self-aggrandizing conception of the Court’s role are on full display. “When contending parties invoke the process of the courts,” he wrote pompously, “it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.” Note the false modesty and the feint at shrinking from the burden of an “unsought responsibility.” Of course, it was the Court, at Kennedy’s insistence, that decided to settle a debate Congress would have resolved.

In other words, Anthony Kennedy doesn’t much care whether his abstractions are true; the important thing for him is that he wants them to be true. As a lawyer in private practice, the future Justice Louis Brandeis was famous for having inaugurated the “Brandeis Brief,” a long compendium of statistics measuring the empirical effects of various pieces of social legislation on real American workers. Kennedy, by contrast, has inspired the proliferation of the anti-Brandeis Brief, which might be called the Kennedy Brief. In a Kennedy Brief, lawyers on both sides fall over themselves to court Kennedy’s favor by repeatedly citing the opinions of Justice Kennedy. These briefs are now so common that they’ve become an inside joke within the Supreme Court bar. In the partial-birth abortion case, the Bush administration’s brief cited Kennedy’s emotional dissent in the 2003 partial-birth case 22 times, and one pro-choice activist told The Washington Post, “If you look at all the briefs, they are all written to Justice Kennedy.”


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