Measuring a Judicial Legacy

by Gerard Magliocca · June 28, 2018

One way to think about a career such as Justice Kennedy’s is to look at the opinions that he wrote or the cases where he probably supplied the decisive vote. You can also consider his extra-judicial acts or (years from now) assess his internal influence at the Court through memos.

Here’s another way of thinking about this though. Years from now, will anyone say something like “As Justice Kennedy reasoned” or “As Justice Kennedy explained” in an opinion or a brief? We see that with federal judges like Henry Friendly and Supreme Court Justices like Robert Jackson. And we have already seen that with Justice Scalia since his death. I doubt very much, though, that anyone will think invoking Justice Kennedy by name will convince anybody of anything in future.

John Dereszewski says:

June 29, 2018 at 12:30 am

Kennedy was one of four Justices who sat during the past 80 or so years – Owen Roberts in the 1930’s; Lewis Powell in the 70’s and 80’s; and Sandra Day O’Conner in the 80’s through the 2000’s were the other ones – whose significance was based more on where they were on the Court than on their actual quality as judicial thinkers and craftsmen. As long as they held the key deciding vote, they wielded great authority and were often assigned an overly large proportion of significant cases. Of the four, Kennedy was probably the weakest quality wise – though Roberts would give him some competition. Preferring the rhetorical phrase over careful analysis and refusing to respond to the criticisms made by the dissenting Justices, Kennedy’s opinions often wilt when exposed to these dissenting views. And if you like the soaring phrases about dignity in the gay rights cases – which frankly I do – just compare them to the patronizing garbage he spewed out in the second partial birth abortion opinion. Neither of these, however, can rescue these often poorly reasoned opinions. If he did not hold this pivotal role on the Court, Kennedy would be dismissed as a relative weak link, rated at the low end of the “Average Justice” category. Powell and O’Conner would probably be rated in the “Above Average” category, but neither would make the “All Time” or “Near Great” lists.
- Henry Cohen says:
  
  July 1, 2018 at 8:21 pm
  
  Kennedy and O’Connor were both in the majority in Bush v. Gore. For that reason, neither should be rated as anything but disgraces to their profession.