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"Persuasion" versus "authority" (and "authoritarianism") in the law

By Jack M. Balkin

Linda Greenhouse has a typically interesting column online in which she argues that the era of the "Kennedy Court" is effectively over, that the Court is now rather firmly in the hands of the conservative majority of which Kennedy is now a fairly consistent part (rather than the "swing justice" who is willing, on a suitable number of occasions, to break ranks). At best, he is the Scott Brown of the conservative bloc, which, for liberals, is far better than his being Mitch McConnell, but still not worth praising to the skies.

What provokes this particular posting, though, is a quote from within the column, from Kennedy's opinion in the Hastings Law School case on the Christian Legal Society: "[S]peech is deemed persuassive," said Kennedy, "based on its substance, not on the identity of the speaker." But, of course, Kennedy, as one of the leading "Supreme Court papalists," i.e., someone who views the Court as literally the last word on the meaning of the Constitution (see, e.g., his opinion in Boerne), is remarkably impatient with anyone who dares to disagree with interpretations of 5-person majorities of the Court. To be sure, he's not relying on "the identity" of a particular justice, but he is surely relying on the altogether contingent fact that five justices happened to adopt a given view, for whatever reason, over what is often altogether persuasive dissents. Constitutional law in the US (and perhaps anywhere) is fundamentally authoritarian inasmuch as it relies on a given institution to be the "ultimate interpreter" of inherently debatable propositions.

I suppose what Kennedy means is that editorial writers and law professors (and even ordinary citizens) are free to disagree with Supreme Court decisions, but, as law professors, we have to teach our students that it really doesn't matter, at the end of the day, whether they are "persuaded" by the majority, since what really counts, as Justice Brennan told all of his clerks immediately after meeting them, what really counts if the "rule of 5," i.e., whether the proposition got five votes.

On another matter, Greenhouse also notes that Kennedy, who is now 74 and has been on the Court a full 22 years, has no apparent intention to retire. "The man obviously still loves his job . . . " she writes, "and he has no reason to leave it." That is, he has "no reason" from his own egoistic perspective, since he is both a key vote for the reigning majority and, when he wishes to be, the swing justice who can toss the liberals a bone or two. And he gets to enjoy the particular kind of fawning that accompanies being a Supreme Court justice (including lots of opportunities for foreign travel and bloviation about how law rests on rational persuasion rather than political power). But, of course, from a public-regarding perspective, he (and every other justice who has served more than 18 years) has every reason to leave, since life tenure really no longer, assuming it ever did, serves the public interest. If Obama is re-elected in 2012 (which I think is an almost overwhelming probability given the disarray in the Republican Party and the current lack of a truly credible challenger to Obama), then I assume that we'll be treated to the spectacle of Scalia and Kennedy trying to hang on until 2017 in order to deprive him of an appointment that might actually have real consequences for the Court. (Needless to say, it is overdetermined that I think that Justice Ginsburg should announce her retirement with some dispatch. By the end of the 2010 term, she will have had her 18 years, and it will be time mfor her to go.)

David Souter (a perfectly fine justice who graced the Court) proved that he was perhaps the least narcissitic justice ever to serve on the Court, by retiring with consummate grace at the end of his 18th year on the Court and making way for someone new. Incidentally, a very fine forthcoming biography of William Brennan by Stephen Wermeil and Seth Stern demonstrates Brennan's own narcissism with regard to his unwillingness to retire, so I certainly don't mean to suggest that conservatives are necessarily less public-regarding than liberals. Ginsburg will be an interesting test case, since there's really no excuse, beyond her personal preference, for remaining on the Court. Justice Breyer is in a somewhat more complex situation. His 18th year will come at the end of the 2011 term, in June 2012. One could easily predict that the Republicans will do whatever it takes to prevent Obama from making an appointment at that time, even it appears likely that he will win re-election. And, of course, if there is any real doubt about that, then that clinches the case for delaying tactics. If Breyer, who is also now in his 70s, wishes to assure a Democratic successor--and one of the problems with life tenure is precisely that it invites such political gaming--then he, too, should consider an earlier resignation.

Full post as published by Balkinization on July 16, 2010 (boomark / email).