During the past two decades of conservative Supreme Court dominance, Anthony Kennedy has won liberals’ grudging appreciation for the swing votes he provides in close cases involving individual liberties. In his first and perhaps most famous swing, Kennedy cast the crucial fifth vote in Planned Parenthood v. Casey (1992), a case that saved Roe v. Wade from invalidation even as it limited abortion rights. Back then, Kennedy wrote that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Twenty years later, Kennedy joined the Court’s three most conservative Justices in a dissent that warned that another public health regulation, the Affordable Care Act (ACA), would break liberty’s heart once and for all.
By declaring the ACA an unlawful encroachment of public power on individual economic choice, the dissenters made clear how little distance separates government coercion of the individual from democratic control of the economy. For decades, legal liberalism has insisted on the difference between the two, resisting the state’s power to violate the civil liberties of its citizens while defending the state’s power to regulate social and economic inequality. The Kennedy minority has now denied that such a distinction is possible, reframing economic regulation as the paradigmatic violation of civil liberty.
The health-care dissent ends on an apocalyptic note widely attributed to Kennedy himself: “The fragmentation of power produced by our structure of Government is central to liberty, and when we destroy it, we place liberty at peril.” In this odd piece of rhetoric, the dissenters accuse the majority of destroying “fragmentation.” The destruction of fragments certainly sounds like a strange pursuit, and stranger still is the suggestion that a primary function of American government is to disempower itself. According to this antidemocratic vision, the freedom to wield political power is no freedom at all.
Reports suggest it was also Kennedy who led the unsuccessful attempt to convince Chief Justice John Roberts to support this repudiation of government. Roberts demurred, saving the centerpiece of the ACA, the individual mandate that penalizes those who do not buy health insurance. Writing for himself and the four liberal Justices, Roberts found that the mandate was functionally a tax and therefore constitutional under Congress’s broad taxing power.
Yet in other parts of his opinion, Roberts agreed with the four dissenters that Congress could not use its regulatory power under the Commerce Clause to compel people to purchase health insurance. In this way, the Chief Justice made clear that he shares the Kennedy faction’s view that government is first and foremost a threat to freedom. As the Court’s conservatives coalesce around this intensely negative concept of liberty, liberals remain diffident about the alternative: a substantive account of liberty rooted in social and economic equality and realized through public power.
That liberals find themselves jilted by Anthony Kennedy tells us more about the complexities of liberal legal thought than about any inconsistencies in the swing Justice’s jurisprudence. Kennedy’s economic conservatism has never been in doubt. Three years before he joined the Supreme Court, Kennedy wrote that “neither law nor logic deems the free market system a suspect enterprise.” Sitting as judge on the Ninth Circuit Court of Appeals in 1985, he held that Washington State had not violated the Civil Rights Act of 1964 by paying its female employees 20 percent less than men working jobs of “comparable worth.” Because this inequitable formula matched a preexisting inequity in market wages, Kennedy found nothing discriminatory in the state government’s payment practices. To hold otherwise, Kennedy argued, would be to suggest that there was something inherently discriminatory—and unlawful—about the free market. This the law could not do.
In an ironic turn, Kennedy’s “neither law nor logic” defense of the free market alluded to Oliver Wendell Holmes’s famous maxim, “The life of the law has not been logic, it has been experience.” Holmes’s experiential definition of law was a harbinger of legal realism, the dominant school of 20th-century jurisprudence. One particularly influential strand of legal realism argued that judicial decisions should be responsive to the social and economic needs of society, not mired in scholastic distinctions. This progressive realism appealed to what law professor William Forbath has called America’s “distributive Constitution.” A conception of government dating back to the Founding era, the distributive Constitution recognizes that “gross material inequality” is an unacceptable threat to both democracy and liberty.
Progressive realists in the first half of the 20th century sought to constrain the inequities of the free market system that earlier lawyers and judges had considered synonymous with law and logic. Justified by progressive realism and empowered by the industrial labor movement, the New Deal created a host of legal entitlements—the right to strike, minimum-wage and maximum-hour laws, and Social Security among them. FDR’s call in 1944 for a “Second Bill of Rights” went further, announcing that the nation was constitutionally committed to the social and economic well-being of its people, a commitment that included jobs and health care for all. “True individual freedom,” FDR said, “cannot exist without economic security and independence.”
Even though a coalition of Southern Democrats, business elites, and liberal anticommunists defeated this constitutional vision in the postwar years, advocacy for positive rights continued through the 1950s and ’60s. The civil rights movement sought more than an end to formal segregation; it also intended to use government to curtail the “economic freedom” of private businesses to discriminate, and to win educational and economic resources for minorities and the poor. In the 1970s, the women’s movement joined this struggle for social and economic independence through public power.
While the guiding motif of progressive realism from the New Deal to the Great Society was the authority of public power to equalize social and economic goods, the midcentury civil rights revolution introduced notes of libertarianism to the progressive score. The legacy of segregation was a constant reminder of the violence that could be done by public power, and much of the rhetoric of the Second Reconstruction emphasized (as all revolutionary movements must) the priority of natural rights over unjust institutional designs. Early civil rights leaders and their partners in Washington knew that the path to a greater society ran through federal intervention in both state government and the private sphere. But when the Johnson Administration failed to make good on its promises of social and economic equality—instead becoming an engine of violence at home and abroad—public power grew ever more suspect.
The procedural and sexual revolutions cemented this critique of government. In a series of celebrated 1960s decisions, a liberal Supreme Court upended the criminal law by protecting the homes, vehicles, and persons of mostly poor and minority citizens from overzealous policing and prosecution. At the same time, the Court confronted regulations subordinating the private choices of women to the public judgments of men. In its 1960s contraception rulings and the 1973 Roe v. Wade decision, the Court used the language of privacy to identify several relationships (husband and wife, male and female lover, doctor and patient) that merited special protection from state interference. The Court’s decisions were a substantive victory for women’s access to reproductive health care. But its focus on privacy put legal liberals in the increasingly common position of supporting the retreat of public power.
Over the past forty years, as Presidents of both parties have deregulated industry and markets and ended “welfare as we know it,” the critique of public power has stood out as one area of liberal legal thought that does not seem outmoded—and it is mostly in this area that legal liberals have found a sometime ally in Anthony Kennedy. The Justice’s suspicion of public power and celebration of a hard to articulate yet essential aspect of the individual (alternatively termed liberty, autonomy, personality, or dignity) has led him at crucial moments to join liberals in the defense of sexual freedom, free speech, racial preferences, and the rights of the accused and convicted.
Kennedy’s political and religious upbringings help clarify the sorts of compromises he has struck while on the Court. Born into a well-connected Republican family in Sacramento, California, Kennedy returned to the state capital after Harvard Law School to take over his father’s private law practice. The young lawyer’s 1963 homecoming put him at the scene of an epochal political struggle: within the next few years California saw the nomination of Barry Goldwater at the San Francisco Republican Convention, Ronald Reagan’s first gubernatorial victory, and the rise of the New Left, the counterculture, and Black Power. Amid this swirl of revolution and counterrevolution, Kennedy’s Sacramento circle introduced him to Governor Reagan and Reagan’s Chief of Staff Edwin Meese, the two men who would be responsible for Kennedy’s nomination to the Supreme Court in 1988.
Kennedy’s path to the judiciary not only tracked the riotous ascent of the modern Republican Party; a devout Roman Catholic, he also lived through a time of great upheaval in the Church. The election of John F. Kennedy and the Second Vatican Council’s liberalization of Catholic doctrine during the 1960s occasioned a coming out of sorts for a new generation of American Catholic intellectuals, among them William F. Buckley, Garry Wills, and Michael Novak. At the time, these thinkers represented a range of political and religious views. Buckley condemned left-leaning papal pronouncements on political economy while Novak called for armed resistance to America’s racist, capitalist order. All three men stood in the Catholic mainstream in urging the Council to modernize the Church’s teachings on contraception. A 1965 issue of Buckley’s National Review was dedicated to the dangers of overpopulation and included a contribution from the president of the Planned Parenthood Federation.
Both Kennedy’s political and religious backgrounds exposed him to the inconsistency of ideology. When the Pope announced a blanket ban on artificial contraception in 1968, many American Catholics were outraged, and within a decade the percentage of Catholics who used birth control closely tracked the rest of the American population. Early in his governorship, Reagan signed the Therapeutic Abortion Act, which partly legalized abortion, only to recant a few years later under pressure from increasingly vocal pro-life activists. Michael Novak, former left-wing radical, came to celebrate the spiritual basis of American capitalism. Living through these transitions, Kennedy may well have developed the tendency to compromise that he has exhibited on the Supreme Court. At the same time, the Justice’s Republican and Catholic roots run deep, and help explain the dominant motif of his judicial philosophy: the protection of private individuals and close-knit communities from the menace of the state.
Many stories can be told about Anthony Kennedy’s place in recent legal history, but in light of his health-care dissent, two stand out. The first is a story of reconciliation, in which Kennedy has struggled to bridge the gulf between the individual rights movements of the 1960s and the Reagan revolution that began that same decade in Kennedy’s home state. The second is a story of subtle sabotage, in which Kennedy has gradually incorporated the democratic projects of racial, sexual, and economic equality into a legal language unfriendly to the collective action that is essential to egalitarian democracy. Of course, both of these stories could be true—the synthesis achieved in the first could be the vehicle for the sabotage described in the second.
A spate of recent scholarship has attempted to identify the principles behind Justice Kennedy’s swing votes. Law professor Reva Siegel’s illuminating Yale Law Journal articles on Kennedy’s abortion and race decisions—decisions in which the Justice has actually supported government regulation—identify two major guideposts: “human dignity” and “social cohesion.” Siegel argues that Kennedy’s abortion decisions seek to vindicate the multifaceted value of “human dignity,” which requires respect for liberty, equality, and life. Since the dignity of women—their freedom of choice and equality with men—must be respected, abortion cannot be outlawed. Nonetheless, government may regulate abortion in order to express respect for the dignity of life. Only by regulating but not eliminating abortion can society acknowledge the full meaning of human dignity.
Similarly, in the context of race-conscious public regulations, Kennedy has sought a middle path. While “race conservatives” tend to view all public racial classifications—even those involved in affirmative action and desegregation programs—as unlawful discrimination, “race liberals” find such classifications aboveboard when their goal is to end the social, economic, or political subordination of minorities. Kennedy’s decisions, Siegel argues, focus instead on the goal of “social cohesion.” Race remains a fractious reality in American life, Kennedy tells us, and government should do what it can to allay rather than exacerbate racial tensions. Unlike race conservatives, Kennedy is inclined to uphold race-conscious public programs that alleviate the marginalization of minorities, but only if those programs do not generate too much resentment elsewhere in the population.
Siegel’s patient analysis of Kennedy’s approach to abortion and race demonstrates how the Justice has placed the liberal pursuit of emancipation in an ecumenical frame. This frame has enabled consensus on important issues, but it also downplays the essence of citizenship: political action. While individuals are encouraged to be dignified and to cohere, they are rarely encouraged to wield power. Kennedy’s tendency to view cases involving political rights through the prisms of speech and expression confirms this almost aesthetic approach to politics. Although the Justice is often more sensitive to social realities than his conservative colleagues, a longing for an elegant synthesis pervades his opinions. From his perspective, the struggle for public power represents a passing flaw in the natural order, not the rough path to justice.
In Justice Kennedy’s most recent abortion decision, Gonzales v. Carhart (2007), the darker tendencies of this search for a harmonious natural order became clear. Gonzales reneged on Kennedy’s promise of balance, vindicating the dignity of nascent life while undermining the dignity of living women. In upholding the Partial Birth Abortion Ban of 2003, Kennedy agreed with the law’s authors (its Senate sponsor was Rick Santorum) that such restrictions could protect women from “regret” and “depression.” In doing so, Kennedy deferred neither to the legislative will nor to medical evidence but to his own intuitions about maternal nature.
While Kennedy’s decision in Gonzales upheld the use of public power—the partial birth ban—it did so on metaphysical grounds rather than democratic ones. Kennedy’s holistic search for dignity led him to subordinate the autonomy of adult citizens to an imagined natural order peopled by innocent babies and grieving mothers. While Kennedy’s tendency to ground his opinions in prepolitical naturalism is particularly pronounced in the context of abortion-related cases, it could affect almost any area of legal doctrine. If Kennedy were to become convinced that economic regulation seriously disrupted the natural order, his default suspicion of democratic power would become a powerful new tool for economic conservatism.
Law professor Randy Barnett, the mastermind of the antimandate campaign, first noted the radical political economic possibilities of Justice Kennedy’s apparent moderation in 2003. In response to Kennedy’s majority opinion in Lawrence v. Texas, which struck down a Texas law criminalizing homosexual sodomy, Barnett suggested in the Cato Supreme Court Review that Kennedy had launched a “constitutional revolution.” Barnett interpreted Kennedy’s opinion as rejecting the “presumption of constitutionality” that the Supreme Court had adopted during the democratic upheaval of the Great Depression. This presumption broke with an earlier era in which the Court had looked with constitutional suspicion on government regulation, especially where such regulation seemed to favor one economic class over another. According to the presumption of constitutionality, the Court should generally defer to legislative and executive decisions about what was and wasn’t constitutional.
Over time, Barnett explained, the Supreme Court modified but did not abandon this deference: only when legislation threatened certain “privileged” or “fundamental” rights, or was the result of an insufficiently democratic process, would it reconsider the presumption of constitutionality. By the early 1960s, a pattern had emerged in which the Court would carefully examine laws affecting minorities and restricting individual expression while treating economic regulations with a light touch. In the late 1960s and early ’70s, when the Court invoked a “right to privacy” to strike down bans on contraception and abortion, it added a new set of restrictions on government action but did not fundamentally alter the civil rights pattern.
In Lawrence, however, Barnett sensed that Kennedy was shaking off this midcentury consensus. Confronted with a man convicted of sodomy, Kennedy did not ask if that man had, as a matter of precedent, a fundamental right to engage in sodomy, but only if the state’s ban infringed on his liberty, properly construed. Finding that the law did, the Justice “asked the government to justify its restriction, which it failed to do adequately.” Perhaps, Barnett speculated, Kennedy was replacing the presumption of constitutionality established in the early 20th century with a 21st-century “presumption of liberty.” Under this new standard, any law that could plausibly be said to encroach on individual liberty (as almost all laws do) would have to be justified before the Supreme Court.
The new age seemed at hand when, during oral arguments in the health-care case, Kennedy announced that the individual mandate “changes the relationship of the Federal Government to the individual in a very fundamental way.” Kennedy was echoing an argument that Barnett had developed two years earlier, seeking to hasten the revolution he first glimpsed in Kennedy’s Lawrence opinion. In “Commandeering the People,” published in the NYU Journal of Law & Liberty in 2010, Barnett wrote that “a newfound congressional power to impose economic mandates to facilitate the regulation of interstate commerce would fundamentally alter the relationship of citizen and state.”
Barnett made several arguments supporting this claim, but the one that gained the most traction in court and with the press rested on an alluringly naturalistic distinction between human “activity” and “inactivity.” Since the New Deal, the Court’s “presumption of constitutionality” has been particularly strong when applied to federal laws regulating interstate economic activity under the Constitution’s Commerce Clause. But, Barnett insisted, this line of precedent only supports Congress’s authority to regulate existing economic activity. The purpose of the ACA individual mandate, on the other hand, was to reach individuals who were not currently engaging in economic activity—that is, not buying health insurance—and force them to act.
In the early 20th century, opponents of the welfare state maintained that federal economic regulation violated individual economic liberty. Their arguments became legal losers as New Deal courts began to assume the constitutionality of regulations under the Commerce Clause. Barnett’s activity/inactivity distinction, however, managed to cloak an outmoded defense of individual economic liberty—the freedom of an individual not to buy—in the cloth of modern Commerce Clause doctrine. His distinction had the added rhetorical benefit of putting Kennedy’s dignified, natural individual at the center of a legal analysis traditionally focused on less emotional policy questions. A majority of the Court bought this romancing of the law, and the five conservative Justices now stand at the cusp of the “constitutional revolution” first glimpsed by Barnett in Kennedy’s Lawrence decision.
While Congress is unlikely to pass another law that tries to compel individuals to buy things, the roots of the conservative Justices’ antiregulatory stance run deep, nourished by a philosophy of individual economic liberty that has lain dormant for seventy-five years. In its pre–New Deal incarnation, this libertarian philosophy restricted both the government’s power to regulate and its power to tax. To the extent that Congress restricts individual liberty by requiring people to pay money into a common pool, liberty suffers whether that requirement is called a tax or a regulation.
There can be little doubt that the next legal conservative crusade will be to do for Congress’s taxing power what Randy Barnett did for its power to regulate interstate commerce. Barnett used the activity/inactivity distinction to read individual economic rights back into the Commerce Clause. If conservatives manage to impose such a limit on the taxing power, they truly will have created a new “presumption of liberty,” making the Supreme Court the final arbiter of the justness—or unjustness—of democratic control of the economy.
It thus remains to be seen whether Chief Justice Roberts’s decision to uphold the health-care law as a tax—rather than a commercial regulation—was a “statesmanlike” concession to the democratic will or an act of revolutionary patience. When the Supreme Court strikes down a law, it risks undermining its own legitimacy in the eyes of the people who voted for that law. By preserving much of the health-care act1 Roberts may have avoided an immediate democratic backlash while stockpiling antidemocratic arguments for a future standoff.
Conservatives have spent the last thirty years constitutionalizing their political-economic vision. Rather than respond in kind, liberals have insisted that the Constitution is largely silent on what William Forbath has called “the rights and wrongs of economic life.” This attempt to declare our nation’s highest law a neutral zone when it comes to political economy has failed, as conservatives have successfully associated our fundamental legal documents with an absolutist defense of private property and the restraint of government power over the so-called private sphere. Their legal analysis does political work, branding government regulation not just unwise but illegitimate: the Constitution means economic freedom and economic freedom means freedom from government coercion.
There is a counterhistory that liberals might have used, and still might use, to disrupt this chain of libertarian associations: the tradition of Forbath’s “distributive Constitution.” Proponents of this constitutional vision, from Madison to FDR, have denied that “economic freedom” simply means private freedom from public power, a definition that affirms the status quo, no matter how unjust. They have argued instead that the freedom promised by our Constitution guarantees material well-being and the real autonomy that comes with it, an autonomy threatened as much by the market as by the police on whom the market depends.
Why have legal liberals been reluctant to use such constitutional arguments to defend their political economic commitments? One possible answer is that the substance of liberal political economy has changed—that over the past few decades, liberals have become increasingly skeptical of government regulation of the private sector. But even among those who unambiguously support the use of public power for progressive ends, there is another obstacle to the adoption of the distributive vision: the specter of violence that haunts progressive governance.
The same 20th century that brought major advances in social and economic rights also brought the militarization of the American state. Those administrations that best exemplify the redistributive potential of public power—Wilson’s New Freedom, Roosevelt’s New Deal, Truman’s Fair Deal, Johnson’s Great Society—also pioneered our nation’s grand experiments with public violence, from mass military mobilization, to mass surveillance, to nuclear war. In keeping with this historical tendency, the Obama Administration has both passed national health-care reform and celebrated the automated assassination of American citizens.
Legal liberals have long sought to temper state-authorized violence. During the last century, they have opposed the deportation and denaturalization of dissidents, fought for the safety and freedom of labor and civil rights activists, and won new rights for the criminally accused. Today, liberal advocates seek to reform the prison system, end the death penalty, check police brutality, and impose more transparency on the War on Terror. These efforts are essential to the cause of justice, but they are also unavoidably libertarian. Criticisms of malign forms of government power cannot help but cast a shadow over government more generally. The dialectic in which left-wing criticisms of government coercion feed into right-wing criticisms of government regulation is a perennial problem for the distributive Constitution and its defenders.
How can liberals escape this dialectic? They could start by focusing less on the ugly means of public power and more on its ugly ends. Liberals should insist that the problem with public power is not that it is too powerful but rather that it too often defends rather than combats social and economic inequality. A harsh criminal justice system stigmatizes the young and the marginal; abortion and contraception restrictions force women into positions of dependency; our adventurist foreign policy and paranoid surveillance apparatus sap the nation’s resources, prey on populations without adequate economic opportunities and legal protections, and distract from domestic threats to our general welfare, from big banks to big polluters. The problem, as this litany shows, is not the coercive nature of public power but the unjust distribution of power in the so-called private sphere. To the extent that public power perpetuates such misallocation, it must be rerouted to progressive ends. At the same time, to the extent that public power overcomes inequality, progressives should not fear that such power is coercive. They should ask, which is the greater form of coercion, a tax you can afford to pay or a hospital bill you cannot?
To defend the ACA, legal liberals mainly relied on precedents from the New Deal era, when the federal courts ratified a broad vision of economic justice. Yet the event in American history that best synthesized public coercion and individual empowerment was the Civil War. The New Deal’s reformist energy quickly dissipated in the military buildup of World War II, as the country turned from social democracy toward the national security state. During the Civil War, however, state violence acted directly on the interior, equalizing a host of political, social, and economic relations. In a striking turn, Solicitor General Donald Verrilli, who defended the ACA before the Supreme Court, alluded to this beneficent history of violence at the end of oral arguments in the health-care case.
As a result of the ACA, Verrilli said, uninsured citizens who would otherwise suffer from untreated illnesses “will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.” As Jack Balkin and Sanford Levinson have argued, Verrilli’s use of the word “shackles” alluded to the bloody role the federal government played in freeing the slaves, an emancipation ratified in the Thirteenth Amendment. After the Civil War, blacks, women, and workers tried to use the Amendment to reform the unjust social and economic relations that the Union army had left untouched, from the field to the factory to the marriage bed. But the federal courts generally confined the reach of the Amendment to the immediate vestiges of chattel slavery, denying the relevance of emancipation to other forms of social and economic bondage. By the 1870s, it had become clear that the freedom of the market would set the outer limit to the meaning of emancipation. As a former Confederate general once remarked, “Emancipated slaves own nothing, because nothing but freedom has been given to them.” Because of this cramped reading of the Civil War’s legal legacy, Verrilli’s comparison of illness to slavery remains metaphorical.
It is unlikely that legal liberals could ever recast the Thirteenth Amendment into a contemporary weapon against social and economic inequality. Before they did so, a great political awakening would have to occur. Still, the prehistory of the Amendment reminds us what a great political awakening can accomplish. The federal government once found the Southern slave system suspect and tore it down. While “neither law nor logic deems the free market system a suspect enterprise,” experience suggests otherwise, and history has yet to deliver its verdict.