Tuesday, September 25, 2007

Justice Kennedy's Emerging Vision of Race

Heather K. Gerken

As we approach the first Monday of October, when the Supreme Court holds the first oral argument of the Term, lawyers have started to play their favorite parlor game: predicting how the Justices will rule on this Term's cases. People are paying even more attention than usual to the Court. The final days of the Court's last Term were filled with drama, with several Justices reading impassioned dissents from the bench. The Court is closely divided, thus heightening the stakes of the presidential race (at least in the eyes of lawyers). And Jeffrey Toobin's new book, The Nine: Inside the Secret World of the Supreme Court, with its new revelations about what took place during Bush v. Gore, has placed the Court back in the public eye.

Now that Justice Kennedy has taken Justice O'Connor's place as the swing vote, academics and practitioners alike will focus on his views, particularly on hot-button topics like race, abortion, and gay rights. Kennedy's views on race were already the subject of much discussion at the end of the last Term because he declined to join in full the opinion of Chief Justice Roberts in the school desegregation cases. As many noticed, both the substance and the rhetoric of Kennedy’s concurrence were different from his prior opinions.

Many people think that Kennedy's new position on race stems from his new position on the Court. Like his swing-vote predecessors, Justices Powell and O'Connor, Kennedy is feeling the pressure associated with being the middle Justice on a divided Court. The deep logic of this middle kingdom, so the story goes, pushes for the kind of compromise that each of these Justices has endorsed -- use race, but don't be obvious about it. And, indeed, Justice Kennedy's settlement on race resembles that of his predecessors. He deemed obvious and straightforward uses of race illegitimate but left room for schools to pursue their goals through indirect and general means. He shunned racial balancing while lauding the idea that race contributes to diversity. The conventional view, in short, is that the story of Justice Kennedy's concurrence begins with Bakke and Grutter.

I disagree. The contours of Kennedy's "settlement" on race are noticeably different from those of Bakke or Grutter. As I detail in a forthcoming commentary in the Harvard Law Review (with an appropriate set of caveats about the risks inherent in speculation that I won't rehash in this post), the Powell/O'Connor settlement is the compromise of a pragmatist. Justice Kennedy, in contrast, is an idealist, and his concurrence in the desegregation cases is an idealistic opinion. Further, Kennedy relies on indirect and general race-conscious strategies for different reasons than Powell and O'Connor do. And while he seems more open to embracing a positive vision of race and thinking about the state's inevitable role in constructing identity, his vision may also be more tied to context and less generalizable across cases.

In my view, the story of Kennedy's opinion in the desegregation cases began not with Bakke or Grutter, but with a voting-rights decision issued last year in a case called League of United Latin American Citizens (LULAC) v. Perry. There Justice Kennedy, long hostile to the use of race in redistricting, objected to the dismantling of a majority-minority district on the rather remarkable ground that the Latinos mobilizing there "had found an efficacious political identity." If anything, LULAC represented a greater departure from Kennedy’s prior opinions than his concurrence in the desegregation cases. As several members of my field have argued (Pam Karlan, Guy Charles, and Ellen Katz, with Rick Pildes on the other side, in essays all available here), in LULAC Kennedy offered a surprisingly sunny vision of race and demonstrated a noteworthy willingness to draw connections between political association and racial identity.

In both LULAC and the desegregation cases, Kennedy has traveled a good distance from his prior position as a (moderate) member of the colorblindness camp. In the electoral context, Justice Kennedy has gone from believing that race is an artificial identity imposed by the state -- and a destructive one at that -- to insisting that the state must maintain certain racially organized political communities. In the schools context, Justice Kennedy has moved from subscribing to race neutrality to brainstorming about the most useful race-conscious strategies the state can use to construct the educational space in which students learn about race.

If you lay Kennedy's two most recent race opinions side by side, you'll also notice something interesting. The link between these cases is not merely that Justice Kennedy has something new to say about race, but the reason that he does. In both cases, it is when Kennedy stops talking directly about race that he manages to say something new about it. In describing the voting-rights claims of Latinos in LULAC, Justice Kennedy tells the story he has long associated with the electoral arena, one having to do with political agency and expression rather than equality. He speaks in the cadence of the First Amendment, not the Fourteenth. Similarly, in evaluating the equal protection claims raised in the school desegregation cases, the novel parts of Kennedy’s opinion (the bits and pieces of his concurrence that do not follow easily from his prior opinions) focus not on race, but on a story he has long associated with public schools -- the exceptional role that schools play in inculcating civic morality. One could eliminate all references to race in both opinions and the underlying stories would still make sense.

It is thus when Justice Kennedy gets caught up in the story of what Robert Post might call a "constitutional domain" that he ends up telling a richer, more nuanced tale about race. In both cases, the story Justice Kennedy associates with the relevant domain serves as a lens. It directs his attention away from his usual narrative about race toward the values he otherwise associates with each domain. Kennedy has long recognized that the political sphere involves robust associational and expressive dimensions, but now he sees how those values connect to racial politics. Kennedy has long thought of schools as institutions for teaching students to be citizens, but now he sees that those lessons extend to interracial relations.

Tomorrow I'll say a bit more about why I think Kennedy's domain-centered narratives have pushed him to new territory in his two most recent race decisions.


This is a terrific article. Constitutional commentary (or speculation) doesn't get any better than this.

Justice Kennedy's decision in the LULAC case calls to mind the recent decision from the Maryland Supreme Court which declined to apply heightened scrutiny to the state's gay marriage ban on the grounds that gays had achieved political successes in the state and thus didn't require any sort of special judicial protection.

I wonder if this is a developing trend, for judges to be looking closely at whether a particular group merits heightened scrutiny in the context of local politics, rather than according to the straightforward identity-based formula they used to teach us in law school.

If Kennedy's ideas of the domain of voting rights come from a 1st Amendment/participatory perspective, I wonder if he'll apply such a narrative to the upcoming Indiana Voter ID Statute case (cert today).

To add speculation upon speculation, casting the civil rights issues in the voter ID case as participatory/1st amendment, rather than as an equal protection issue, may better convince Kennedy that the statute should be stricken.

“It is hard enough to remember my opinions, without also remembering my reasons for them!
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