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Friday, October 27, 2006 

Yet Another Supreme Court Poll

Above the Law recently had a poll asking readers for their favorite Supreme Court Justice. Now, it's time to say who your least favorite Justice is. This was a pretty easy call for me: Anthony MacLeod Kennedy.

I know what the gut reaction is going to be from many people. "You just don't like him because he's the swing vote that's blocking the five-vote majority that you want." Well, partially. There is much more than that though. Kennedy's jurisprudence just drives me nuts. He just doesn't have an aversion to bright line rules. He has an aversion to making up his mind.

For example, let's look at the redistricting cases. The classic Kennedy opinion is his concurrence in Vieth v Jubelirer. This was a 2004 case that upheld a Republican-drawn district map (some would call a gerrymander) in Pennsylvania. It was a 5-4 case with Kennedy providing the fifth vote in judgment only. He signed onto the result of the plurality opinion but not its reasoning. The plurality in Vieth (made up of Chief Justice Rehnquist, Justice Scalia, Justice Thomas, and Justice O'Connor) rejected the test put forth in Bandemer (a previous redistricting case), saying that political gerrymandering was a political question that was not for the Court to decide.

Justice Kennedy did not agree on the political question view. He did not want to shut off the possibility of a workable test to be applied in these cases that could invalidate a political gerrymander. Unfortunately, Kennedy could not come up with one himself. His opinion was basically, "There's no good test yet, I can't think of one, there might be one out there, make one up." Last term's LULAC v Perry didn't add much to clear up this issue. Kennedy still clings to the hope that someone can come up with a workable test, even though no Justice, petitioner, respondent, or amici has come up with one yet. Get off the fence, Tony. It's a political question.

How about another example? When he does come up with a test, it can be incredibly difficult to apply. This is a criticism that could be leveled at Justice O'Connor as well. Both of them are fond of telling lower courts to look at and consider a list of factors, then make a decision. Well, that doesn't offer lower courts, especially district courts, much help. It certainly puts any idea of consistency in question. An example of this is Kennedy's concurrence in Rapanos v US. Rapanos was the recent 5-4 Clean Water Act decision. Again, Kennedy concurred with the plurality in result only. Instead of adopting the bright line rules of either the plurality or the dissent, Kennedy's concurrence demands a "significant nexus" test to determine jurisdiction of certain waters under the CWA.

Sounds very concrete, doesn't it? Well, it's managed to confuse one district judge in the Eastern District of Texas. In US v Chevron Pipe Line, the judge basically said that he knows Kennedy's concurrence should control (as it was the narrowest 5-vote opinion) but he couldn't apply it. The judge said that there was no guidance in how the "vague, subjective centerpiece" that is the significant nexus should be applied. The court then fell back on the existing Fifth Circuit precedent on the issue.

Part of the problem is that everyone is sitting on their hands right now. The Army Corps of Engineers, the agency that handles wetlands under the CWA, hasn't issued new regulations, post-Rapanos. They aren't saying a thing until the courts start applying Rapanos. Courts like the one in the Eastern District of Texas have no Corps regulations to help guide them. Only the Ninth and the Seventh Circuit Court of Appeals have spoken on Kennedy's test so far. The Seventh Circuit booted US v Gerke Excavating back to the district court for more fact finding in order to apply Kennedy's test. Best of luck with that, district court judge.

Those are just two examples of Kennedy's problematic jurisprudence. I could also mention the foreign law issues and the crapping up of judicial opinions with things like "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," but I've spent enough time on this. My vote for Kennedy was an easy one.

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