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August 9, 2006

The jury is still out on Justice Kennedy

I am not a big fan of Justice bashing, but sometimes they ask for it.  Specifically, Justice Kennedy latest speech to the ABA has me irked.  As discussed joyfully by Dahlia Lithwick in this essay at Slate, the speech was about "the essentiality of the rule of law."  And Justice Kennedy's money line was "Make no mistake, there's a jury that's out.  In half the world, the verdict is not yet in."

This line should rankle anyone familiar with Justice Kennedy's work in the Apprendi line of cases.  Justice Kennedy draws on jury rhetoric, but he consistently votes to deny jury rights: he dissented in Apprendi and Blakely; in Harris, he authored the plurality opinion denying jury rights in mandatory minimum sentencing; in Booker, he was a key vote for a remedy that eviscerates jury rights in the federal system.  And just two months ago in Recuenco, Justice Kennedy penned an opaque (and obnoxious) concurrence suggesting he still does not accept Apprendi and Blakely.  To promote the "essentiality of the rule of law," Justice Kennedy ought to get his own house in order before lecturing others.

What I find particularly galling is that Justice Kennedy now will go to extraordinary (and improper?) lengths to protect the rights of convicted murderers, as shown by his recent votes in House v. Bell and Roper.  He even accepted Apprendi in order to extended jury rights to capital defendants in Ring.  But while Justice Kennedy works hard to ensure killers have their rights protected (and extended), low-level drug dealers and thieves have to listen to his pro-jury rhetoric while suffering the fate of his anti-jury rulings.

August 9, 2006 at 02:46 PM | Permalink


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Meet your new swing vote...inspires a world of confidence, eh?

Posted by: SPD | Aug 9, 2006 3:27:30 PM

I think you're a little harsh on Justice Kennedy. Leaving aside his use of the colloquial phrase, "The jury's still out" (he clearly hit a nerve with that one), Justice Kennedy's jury rulings do not contradict his belief in the importance of the Rule of Law. The Rule of Law is not premised or dependent on the composition of the legal decisionmaker(s). It is simply the belief that articulated, universal legal rules and a pre-defined legal process lead to superior policy implementation -- and result in a healthier, wealthier society. One could eliminate the right to jury trial entirely and still believe, strongly, in the Rule of Law.

I fear that Justice Kennedy's Rule of Law beliefs and his (perceived?) disrespect of juries go hand in hand. Juries are parochial; juries are capricious; they don't have to explain their decisions; they don't even have the reputational and career restraints that federal judges have to keep them in line. Let's admit it: juries are a wild card. That's why Justice Kennedy and a lot of people (a lot of prosecutors? many civil defense attorneys?) dislike juries -- they are unpredictable. The Rule of Law is premised on predictability.

(Cynically, others would note that juries are not subject to political control. ("Hey, we paid for the [lobbyist] [legislator-legislation] [regulator-regulation] [governor] [President] [judge] that we want, and now our fate in this case is largely decided by a group of unknown, ordinary citizens? How do we buy THEM off?") And they are not part of society's elite. While I believe that the majority of proponents of the Rule of Law honestly believe that it is good for society, some who are the most strident advocates of the Rule of Law are simply contestants in the age-old quest for power and its resulting benefits.)

In Hawaii, Justice Kennedy implored the Bar to show that the Rule of Law actually works, but this proselytizing about our system of justice needs to highlight the fact that we are very aware of the limitations of law, and that, over the last four hundred-eight hundred years, we've tried to create explicit checks in our justice system to keep it from being harmful to our society. Based on our historical experience, the Rule of Law must be made intentionally inefficient -- with checks like the jury system -- for it to exist as a positive force in a society. (Let's not forget, the Soviet Union had a very efficient legal system, just not one that was good for their society.) We shy away from telling the world that the only good legal system is an inefficient one. Too bad. It's an important lesson. And it's a lesson that Justice Kennedy doesn't seem to want to talk about.


Posted by: Mark | Aug 9, 2006 4:41:45 PM

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