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How we’ll remember Justice Kennedy’s Supreme Court impact

Justice Anthony Kennedy leaves behind a legacy in the courtroom and in the lives of those who worked with and for him. Amna Nawaz gets reflections on the jurist’s impact from former Solicitor General Walter Dellinger, Michael Dorf of Cornell Law School, Orin Kerr of USC Gould School of Law and Ilya Shapiro of the Cato Institute.

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  • Amna Nawaz:

    We return to our lead story.

    Justice Kennedy leaves a powerful legacy on the court, best told by people who served as his clerks, argued before him, or closely followed his jurisprudence.

    Michael Dorf clerked for Justice Kennedy. He now teaches law at Cornell. Orin Kerr is a law professor at the university of Southern California and another former clerk to Justice Kennedy. Ilya Shapiro is a longtime observer of Kennedy's and the court and editor in chief of the Cato Institute's Supreme Court Review. And Walter Dellinger is a former acting solicitor general who argued more than 20 cases before Justice Kennedy. He's now at Duke Law School.

    Gentlemen, thank you for being here.

    Walter Dellinger, let me start with you.

    You estimated more than 20 cases you argued before Justice Kennedy. What do you remember about making those arguments before him?

  • Walter Dellinger:

    Well, one of the great qualities of Justice Kennedy was that, in many important cases, you knew that he was open to be persuaded by cogent arguments, so that, I think often advocates felt he was someone who could be persuaded.

    I think he wasn't as sharp a questioner as some of his colleagues, but I think that was offset by a quality of open-mindedness.

  • Amna Nawaz:

    Orin Kerr, you perhaps got to see him in a way the rest of us didn't. Tell me a little bit about this man who, for so many people, he played such a pivotal role in some of the biggest issues of our time. Did those issues weigh on him?

  • Orin Kerr:

    Yes, he certainly thought carefully and deeply about the issues that the court was considering.

    And, as Walter Dellinger just noted, I think he had more of an open mind towards the direction that the law should go than some other justices, something that frustrated people on both sides. He wasn't a reliable vote for one side or another, but rather a justice who would calmly consider each case on its own and reach his own view about what the Constitution should mean.

  • Amna Nawaz:

    Ilya Shapiro, you have been watching the court now.

    We know Justice Kennedy to have been sort of a moderating figure, right, not a consistent left or right voter to some degree, though largely conservative over the course of his career. How does that change with the next nominee? What should we expect ahead?

  • Ilya Shapiro:

    Well, Kennedy's often been called the libertarian justice. It's probably a low bar, but the way that he sees cases is coherent within, I guess, his own issue areas, but not in conventional terms about originalism or progressivism or whatever else you might want to call it.

    And so whoever replaces him is not going to be like that. It's going to be — from Trump's list, all of them are originalists and textualists, what some might call conservative, or libertarian, to some extent, but it's going to be kind of a more conventional style of rubric.

    So this will move the court what conventionally is called to the right on many issue areas, which would mean that John Roberts, the chief justice, would also be the man in the middle. And so John Roberts will be ever more powerful.

  • Amna Nawaz:

    Michael Dorf, you also knew him in a way most of us did not as a former clerk.

    This issue of legacy, for people who serve on the highest court in the land, it comes up often. I wonder if that was something that you think Justice Kennedy considered as he was making some of those big decisions, and how his departure today would affect that legacy.

  • Michael Dorf:

    I think he certainly considered the long-term implications of all of his decisions.

    Of course, he was thinking about deciding the cases before him. Unlike Justice Sandra Day O'Connor, who served with him for a long part of his time on the court and who was also a sort of swing justice, I don't think he tended to think just in terms of the case before him and decided on narrow grounds.

    So he did think about legacy. I think everyone will acknowledge that his biggest legacy is in the LGBT rights area, but there are all sorts of cases that he will be known for, for example, the Boumediene, the decision that extended the right of habeas corpus to non-citizens outside the technical jurisdiction of the United States.

    He was fundamentally a justice who didn't want to get stuck on technicalities. And whether that spirit survives will really depend on where the court goes and, as Ilya says, on where Chief Justice Roberts goes in the near term.

  • Amna Nawaz:

    Well, Ilya, let's talk about that now.

    Some of those votes that potentially surprised a lot of people from Justice Kennedy, right, like Michael Dorf just mentioned, the 2015 same-sex marriage vote, he was the deciding vote there as well. He also voted to uphold abortion rights precedent, which wasn't necessarily a conservative position.

    It's likely and fair to assume that the next nominee will be more conservative, perhaps. So could some of Justice Kennedy's legacy in those decisions be undone?

  • Ilya Shapiro:

    It depends on the issue area.

    On affirmative action, for example, racial preferences, only once, the most recent case, Fisher vs. U.T. Austin, did he vote to uphold a use of racial preference in admissions, although he never — even though he voted against other programs, he refused to slam the door on doing that.

    Presumably, the next nominee will be more in line with even John Roberts, who said that the way to stop racial discrimination is to stop discriminating based on race. On abortion, I'm not certain that it takes just replacing Kennedy to overturn Planned Parenthood vs. Casey and Roe.

    John Roberts is a minimalist and an incrementalist. I could see more restrictions being allowed, without necessarily overturning those other precedents.

    And so you have to look at it issue by issue. I think there definitely will be some transformations, but it doesn't mean that every case ever or in the last five or 10 years in which Kennedy joined with the liberals, that all of a sudden in now in play or will be overturned.

  • Amna Nawaz:

    Walter Dellinger, let's look at that one issue then, the issue of abortion.

    It's already been coming up in conversations since Justice Kennedy announced his departure. What do you make of that? Is there a possibility that it could come up with a more conservative nominee moving forward, that Justice Kennedy's previous decisions could be undone?

  • Walter Dellinger:

    Well, if President Trump succeeded in nominating and confirming a justice like Justice Gorsuch, I think it would be an enormous change in the consequence of the court.

    To start with abortion, there are only four justices on the court that I think would support Roe vs. Wade or even Planned Parenthood vs. Casey.

    Justice Kennedy was the key vote to strike down regulations that, in his view, in the view of the majority, had no medical basis, that would have closed virtually every clinic in the state of Texas, so that I think a justice who agreed with Justice Gorsuch, a new justice, would be the fifth vote, not necessarily to say the words Roe v. Wade is overruled, but to allow regulations that many would think, and me included, would price and regulate abortion out of the reach of many women.

    Similarly, I think, on the issue of gay marriage, I don't necessarily see the court overturning necessarily Obergefell with a fifth vote, but they certainly, I think, could delegitimize marriage by decisions adverse to gay interest on spousal benefits or parental rights or other areas.

    And then I think we're looking at a possible court that would invalidate any kind of progressive economic legislation. So I think that it is a truly profound — I think I disagree a little bit with the tone of my friends and colleagues. I think it's a really — sets the stage for a profound change.

  • Amna Nawaz:

    Orin Kerr, what do you make of that? Do you think there is profound change ahead in the wake of Justice Kennedy's departure?

  • Orin Kerr:

    I think — I agree with Walter Dellinger. I think there's likely to be major changes in American law in a way that we haven't seen in a long time.

    It's important to realize Justice Kennedy has been on the court for 32 years and has been a center vote pretty much that entire time. So even though individual cases might be seen to bring the law in a particular direction, that stability of having that same person be the deciding vote or one of the deciding votes is actually relative stability.

    I suspect we're about to enter a time of things being much more in flux than we have seen in decades.

  • Amna Nawaz:

    Michael Dorf, let me ask you about some of your more personal remembrances as well, because this is, as we know, a man who presented himself in a very professional manner on the bench, as all the justices do.

    We heard before that he wasn't as aggressive a questioner. It was hard to read where he was coming from on some of the issues.

    What do you know about how he considered some of those biggest cases, the ones that will now only be really judged by history?

  • Michael Dorf:

    He prepared very strenuously for all of the cases the court faced. He would read all of the briefs.

    It actually was a bit frustrating to me, as a law clerk, because, on the courts of appeals, typically, judges want bench memos, which is a law clerk sort of summarizing the briefs. And Justice Kennedy liked us to prepare in my day were audiotapes — now I'm sure that they would have been MP3s or something — where we sort of just talked about the cases and sort of summarized the issues as we saw them, so he could listen to them on his way to and from the court.

    And he would do that, in addition to doing all of the reading. As a questioner, I think I know what Walter means when he says he wasn't that sharp. He doesn't mean he wasn't smart. He means he wasn't sort of trying to trick or catch the lawyers.

    He would ask questions that genuinely reflected his concerns. And so, in that way, he would often tip his hand as to how he was likely to vote, although not always.

    And in your earlier segment, you had Marcia Coyle saying that he wasn't sort of warm and cuddly. And I suppose that's true in his professional manner to lawyers in the courtroom. I wouldn't say cuddly, but he was certainly extremely friendly. And he has a great sense of humor, kind of a mischievous sense of humor, in fact.

  • Amna Nawaz:

    Something we don't hear often about.

    Ilya Shapiro, if you can, in quick sentence, for his place or his influence on the court, for all the years on the bench, what's the legacy of Justice Kennedy?

  • Ilya Shapiro:

    It's mixed.

    He's not going to be universally loved by both, but not going to be universally hated by anyone, I don't think, and definitely an important Supreme Court justice.

  • Amna Nawaz:

    Michael Dorf, Orin Kerr, Ilya Shapiro, and Walter Dellinger, thanks for your time.

  • Michael Dorf:

    Thank you.

  • Walter Dellinger:

    Thank you.

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