tv Anthony Kennedy - The Median Justice CSPAN December 9, 2018 2:37pm-3:53pm EST
maybe in some future case, that will be expanded in some way that is problematic. if it just means if i waits the principles of federalism, you can say the law is improper. i don't want to pass on this without noting the joint opinion scalia and kennedy signed says the individual mandate is not necessary. it does not just say it is not proper. it says there are all other kinds of ways congress could do this which would be a radical departure from our understanding of what necessary means to the present day if the court takes that and runs with it. i think there is every reason to expect they might. >> steve? >> i wanted to take a point of personal privilege to thank you again not only for inviting all of us here to this great conference but for somehow moderating four panels by
yourself. i hope it is ok with everyone if i just say thank you, eric. [applause] >> american history tv, from an all-day conference on retired supreme court justice anthony kennedy, law professors discuss the significance of kennedy's role as a deciding vote in major supreme court decisions. georgia state university hosted this one-hour event. >> thanks for sticking around. it is friday at 3:30 and you are still here. we appreciate that. we will end on time at 4:45 or earlier depending on the energy level. this panel maybe should have been the first panel. i don't know. it was a close call. it was going to be first or last. i chose last. . it may have been a mistake. this is the panel were going to talk about the idea of justice
kennedy being the median justice and being obviously the most important justice of the last 17 years and maybe the last 30 years. famerstein is a hall of when it comes to supreme court data and databases and these kinds of issues, so i will start by asking lee to describe what we mean by median justice, how powerful he was, and how valuable the idea is at all. i apologize. sasha is from emory. jonathan adler is from case western. lee is teaching at washington university. >> the median justice is the justice in the middle of a distribution. the distribution could be anything. it could be the number of children they have, their ages. usually when we talk about the median justice on the supreme court, we are referring to ideology.
the median justice, the middle justice, half of the justices are two that justice's left, more liberal, and have to the right, more conservative. i think that is what we typically mean. we could talk about a distribution on a regionalism or other methods -- or regionalism or other methods but that is not typically the case. >> how dominant was he as a median justice? >> we did some calculations on this. 1937 to the to present term, 81 terms. were 19 out there median justice is. i would say justice ca kennedy dominated. he was the median justice 18 times. byron white, 15 times. sandra day o'connor, nine.
clark, six. when we created that list, one question -- am i allowed to ask questions or are you the only one? >> please, go ahead. >> here is a question about that. these were the super medians, the people who held positions of power for a long time. it is not a very distinguished list. i don't really think of reid, clark, even byron white, i don't think they have much legacies they had left on the court. mike dorf made an interesting point earlier that when he thinks about legacy, he thinks about it in an historical way. 2005 22017nk about -- to 2017, we think about
domination by justice kennedy. that is one way to think about it. the other is more what you are talking about. today, what do we think? have their opinions had enormous effect and are still around and so on? maybe being a supermedia and like a justice kennedy is not a good thing for your legacy. >> you want to respond to that. >> i think there are many ways you can be a median. if you have no philosophy and split the difference between everybody, you are the median. you determine a lot of decisions. nothing original and distinctive, no one thinks of you as someone distinctive. on the other hand, you could be a median justice because you do have a distinctive view which happens to be in the middle on
some particular issues. i think there is no reason to inherently expect that the set of median justice is is particularly distinguished. maybe we can compare this with parliamentary politics where there are going to be some median, small political party that can throw its weight around. are those small political parties the most brilliant politicians or are they just the ones that happened to be necessary for a coalition? i think there's probably not much we can say as a matter of principle about whether this should be a distinguished group area what i found interesting is you brought this back to the discussion earlier in the day about whose legacy is more enduring. one thing i did not really like about the earlier discussion was there was an effort to connect the was more significant with how long does it take for their
decisions to be overruled. make theke -- if you simplest political science model where any new majority can change the decisions of an earlier majority and it is always the median justice who dominates, if you have a justice kennedy and as soon as justice kennedy leaves, the justice kennedy decisions keep being around, all that means is the new median agrees with justice kennedy on that. in a sense, that makes justice kennedy less important because it means he is less distinctive. he just happens to agree with later median justices on what the proper rule is. if justice kennedy had a distinctive rule that he was pivotal to and immediately that is overruled, that actually means justice kennedy was more important, not more enduring, but for the time he was justice he was absolutely necessary for
that. and he was the person without whom that rule would not have existed. it is not necessarily true that somebody more significant will be more enduring. it could go either way. >> that strikes me as a variation on mike dorf's earlier point. >> let's bring this back to the ground a little bit. 30 or005 until june whatever it was of this year, in virtually every divided opinion, justice kennedy was in the majority. that is a long time. abortion,cends campaign finance reform. doesn't that make him unbelievably important? lee's data.s out in justice kennedy was in the majority 18% of the time his entire career. if you look at the roberts court in the 1990's, with the
exception of two terms, he was the majority more than anyone else. the justice you would expect to and wase majority more one or two percentage points ahead of kennedy. you cannot understand this time of the court without understanding justice kennedy. the other thing you don't see as data but i think is important is when justice kennedy was the median justice, he was not the middle-of-the-road, split the difference justice that o'connor was in a certain set of cases. modal tendencyis as a justice was to be a moderate conservative. if you count by numbers, he was a moderate conservative in more cases. in some areas we talked about
today where he cared about the subject matter, he might not have been particularly moderate or conservative. in those areas of the law, he still was defining the court's doctrine. but not in a split the difference way. when he cared about a particular first amendment issue, he was arguably the farthest right justice in that case. and he determined what the court did, not chief justice roberts. we could argue on issues like same-sex marriage whether he was the furthest. but he was the one that made aggressive opinions in those areas possible. because he was the vote that the liberals on the court were worried about losing. that makes him a particularly distinctive type of median justice. he stands out when you look at the list in terms of legacy and impact on the shape of the court's doctrine.
whether you think his opinions isl last or not, this period defined by justice kennedy in a way it was not defined by theice white or the way 1980's are defined by justice o'connor. >> just to reinforce jonathan's point, if you look at the data, kennedy is the only median to have been a median for an entire chief justice year. nobody else can lay claim going back to 1937. that is a distinction. >> it is late in the day. i have a big question that is not data oriented. i agree with everything you just said, jonathan. it is a sentence i hate uttering, but i do. >> i hope someone got that on tape. >> i agree with everything you just said. we lived in a country from 2005
to 2017 where the nation -- nature of the institution of the same -- supreme court led to a situation where one person really directed almost the litigatedbit of constitutional law questions. i think lee will say that was historical aberration. shouldn't we rethink the idea that one person can have that much power? >> i don't know that there is anything inherently wrong with that. whenever you have a bunch of decisions where you can put people on a spectrum and you have a single peaked in this there willand so on, naturally be a median and whoever is in the median will determine the role in the case there will be a median for a bunch of different cases. it may turn out one person happens to be the median in a lot of areas.
should we attach any significance at all to the fact one sickle person happens to be the median in all areas? would it be better if we had two people and kennedy happens to be the median on all of the hot button social rights issues and nnedy was the median on separation of powers issues? would it be better that you happened to have two separate people? i think as long as every case has a median, that is the mathematical property of the decision process. >> jonathan? >> yes and no. there is the joke that the last decade has been justice kennedy's world and we just live in it or try to teach it. i agree it is the nature of the process. was going to argue this
is an aberration, i would probably agree with that. there are certain things you would expect to see in a median that we did not see in justice kennedy. there was a degree of stability, coalition stability, in that period which i think is somewhat unusual as well. that is aclear to me permanent feature. arguably entering what we might characterize as a second roberts court that will be different from the first roberts court or what we might have called the kennedy court. maybe roberts will be the median on that court. he will be a very different median. is it going to matter it is one person? i'm not so sure, especially given that 50% of the court's
things in be deciding those cases still matter. i'm should mention i do -- going to agree with you on this pedagogical point. when i teach first-year law, it is the one in, class everyone comes in to law school with opinions about, and they think it will all be abortion and gay rights all the time. they come into it with the attitudinal model of voting. they realize we are all legal realists and it comes down to what you think about marriage, abortion, or whatever. they are very close to thinking that. i don't mind that. i think legal realism is probably very true. but i don't want them to necessarily come to it with that
view and stay strongly with that view. i like to undermine it when possible. i like it when i teach the separation of powers cases where there are crosscutting coalitions. that is why i also like to teach admin. there are areas where even if it is still attitudinal, it is attitudinal in a different way and you have coalitions that are not left/right. i have data on this. i looked back for the last in terms on the 5-4 decisions where the winning coalition did not include kennedy. >> con law were across the board? >> all supreme court cases. designed statistics for just that thing. one big area is what we've talked about, the criminal procedure decisions, some fourth amendment things, the confrontation clause where
scalia or thomas joined liberals. you have carpenter in the last term. that is a little different. melendez, andnes, gant. you have seven cases that are blakely style. >> 5-4? >> 5-4 cases. , typical one would be scalia commons, stevens, souter, ginsburg. something like that. where kennedysome has a very distinctive view where he has a more first amendment protected view and view ando be in the happens to be in the minority on that. two cases in the 2014 term about judicial elections and confederate veterans on the license plate. and there are some that are more along the lines of procedural separations of powers where you
likedifferent coalitions the federalabout rules of civil procedure where you have coalitions that will different. i like that those cases exist and i like to stress them. >> your data is interesting. to get back to your question about the value of a median. about howlked distinctive kennedy was. one of the reasons he was so distinctive is that there was a reasonably sized gap between kennedy and the right side of the court and kennedy and the left side of the court. not so much last term. that is very unusual. usually, we have a softer mi ddle. the left can jump over the median to make a coalition with the right and the right with the left. you are very focused on kennedy
as the median, but he is quite unusual. we will see a very different set of circumstances next term. gap thating about the creating kennedy as more of a super median, over multiple terms is where you get significance. such that you are not getting a full cross-section of cases. you can imagine mixes of cases that produce lots of different justices as medians if you don't have this characteristic we identified. it is that space that means in term after term with different cases and different issues, you replicate the same phenomena. interesting and peculiar if that dynamic were to
reassert itself in the future. >> i am more critical of the institution and other people. but if hillary clinton wins and merrick garland gets on the court and kennedy stays on longer or whatever, we may be entering a polarized age where any moderate justice will be the median. data is what data is. kennedy was an historical aberration to that point. i think we live in a merrick garland dominated world if hillary clinton wins the election. that is a hypothetical that could have happened. one other question, lee. ifssume from your data that an historian were writing today and looking at the supreme court over time, justice kennedy has been the most dominant justice by far in a very long time. >> on virtually any indicator i
can think of. if you can think of when i have not -- >> i am not a data person. but i don't understand your data. in virtuallying is every year of the roberts court, kennedy was in the majority over 90% of the 5-4 decisions. >> i am not making a point that these cases are dominant. i totally agree. i just think it is interesting when we talk about median justices. i find it interesting to stress. let me put it this way. talking about kennedy as the median justice i think gives a lot of emphasis to a strict left/right attitudinal model of voting. i think it is useful to point , and in particular students, that it is not all that. much of it is that.
the attitudinal model is not wrong. legal realism is not wrong. it is useful to look at areas where either there might not be a median in that case or the median is something different or the coalition. comparison, my total list of all the cases for the last 10 terms weather was a 5-4 majority that did not include kennedy, there were 26 of them so it was not a large that. i find it useful to talk about. only 5-4 cases. is a recurrent theme of our twitter wars. thethan likes to point out 5-4 cases. there is an important point that they select their own cases. they are not going to take 70
cases out of 75 that raise ideological issues that will divide them because they know -- in the last 17 years, they know if they did that, if they were 5-490% of the time, the american people would view that institution very 50% of the time. >> but i do not think that is at all. this court more than any court in my lifetime and a long time, yes it is a discretionary rate. the mantra document has shrunk to almost nothing. that appliescourt what you may characterize as traditional criteria very strictly. that is to say, this court is looking heavily for things that reasons to grant such as the striking down a
federal statute. take a case that does not fall into one of the two categories. really not very many a year. is, they are only taking cases in which really smart, really thoughtful lower court judges have already disagreed with each other. you can argue that they don't take every case every year, but if you look at the ones they deny, they often have obvious legal problems where there is a plausible problem. the fact that they are not five to four virtually, all of those cases is a remarkable thing. they're picking cases lower courts have already shown people operating in good faith are going to split on. the fact that they can be 9-0 in even 3% of those cases to me is notable.
they are taking the hardest cases at -- about which we at least to start anonymity, we split 5-4. it is about two thirds of the time on ideological lines. about that amount during the court. that over the 54 cases. i look to the data and they say, it is surprising they're not splitting that way more often given the nature of the document. the isn't your only pointed really that they can use docket control to look more or less political? >> i have two points and that is one of them. i'm not saying they sit in a room and say -- but i think it will happen. after justice o'connor's retirement, she was asked about her favorite cases and least favorite cases. answere a remarkable that in some ways was not a very nice answer. she said yes, i -- native
american cases just wrote me nuts. no one ever wants it -- an case. pretty much a direct quote. >> it is not wrong. >> i would know but i think it is not wrong. , jonathan, one of the wents you are overlooking is have all kinds of supreme court clerks here, but it is my impression talking and observing that there are many cases they do not care much about it when they do not care that much about eight-oneill join and and 7-2 decision without spending a lot of time and asked on it. justice o'connor implied that party strongly. might be true but wei'm the chief justice, and will identify and member of the court hoosiers possible for the
document, roberts is chief now. but if his goal is to make the court look less political by having more unanimous decisions come you don't have a 65 case term if your goal is to have a court that looks less political by having more unanimous opinion, you would grant an additional 40 cases that you know will, 9-0. then your numbers look great. if that is what we think is going on, it does not explain the behavior we see. maybe when it comes to marissa, no one will go to the mat, fighting over how to interpret the third, and a sentence or something. i would accept that. if it is being used to make the court look less political, they are doing the exact opposite of what they would be doing if that was their goal. >> i would expect if we look at a term with the conference notes were available, there
would be a lot of cases where, it is not that there was an initial division, at conference, but because it was a low stakes case, everyone decided to join what was initially a 5-4 vote. i think it conference he would even find it is 9-0 in the voting. looked easy ton the law clerks and in the initial discussions in chambers. has shrunket significantly. that is clearly true. there may be different theories about that. caresdge had interesting about that, one of which has nothing to do with what you were mentioning, but they just want to do less work with the four law clerks. do you think the court uses lessol to appear ideological? >> i think it certainly did in the 2016 term, a very low-key term. there were no big constitutional cases on the docket. they had their most consensual term in sick -- 50 years.
debating me here. you mean the term when they are 4-4 question mark evenly divided term? >> there are other things going on. and --d it five --it proves only approves only five grant spirit we can understand that. look and tieo kennedy into this, i think the chief justice, his vision of a political andless more like the umpire that you can ignore, not balls and strikes, but think about the -- how youut him don't go to the game to watch the umpire. after talk to the umpire the game, it wasn't a good game or you want to talk about the players. court,t division of the taking fewer cases, fewer calls when youe has to make,
look at the chief justice approach to the question, you see that. what is interesting about justice kennedy is for a variety of reasons, justice kennedy for juicing those types of cases. he wrote on the margin with but in ways that wouldn't firmly, fully close the door. cases, he hasng to write a separate opinion. if joyce kelly have bought a plane ticket, maybe she would have standing. epa comes along and my idea of the case is death which i was synthetic to, the argan's -- the argument are very strong arguments.
it was possible no climate change plan had standing to her for someone like justice kennedy, that would mean closing the door completely. he was not willing to do that. he was willing to push it partially closed as justice roberts would like to do but he wouldn't go the full difference -- distance. chief justice roberts, let's take the court out of the game. justice kennedy one of the option of being in the game. >> at that point, the court grandstanding kind of to challenge a rule that affects global warming maybe, the justice has said many times in the 1970's, almost a direct quote, the fact that no one would have standing does not mean there is reason to find standing. think of this kennedy thought that fact that no one would have standing is the exact reason, consistent with judicial supremacy we haven't talked about. >> i think jonathan makes an excellent point and i agree with
his analysis. but this is one of the biggest changes and there are others of course, but as the median moves from kennedy to roberts. >> yes. my question about that is do we think -- around the country of -- giving speeches saying this would be the first court since mid-1970'ss with -- without a true moderate if we think kennedy is a moderate. unless kennedy changes his spots, he is not going to be anywhere near him kennedy. how will this affect the court? >> it is in name only. if the hot button closely divided cases are simply 5-4 with democrats on one side and all the republicans on the other, it doesn't look the same, right? it is a very different kind of court.
but i take jonathan's points very seriously. on how roberts could play that median role. >> we talk about how median, we can find it -- define it along different dimensions. median roberts is a justice in some respects is his minimalism. not necessarily a left right thing. certainly,t certainly justice thomas and gorsuch aren't really sympathetic to the minimalist approach. schooley a wasn't. there were opinions where he would agree with roberts and also in the court where he talked earlier, scalia would criticize the court for not going where he thought the logic of the analysis needed to go. there will be an interesting dynamic where roberts, for a different set of reasons, if he follows what we have seen in the
last 10 years, he will often be trying to get majority opinions that do a little bit, in most cases. there are a handful of issues where roberts is willing to set aside his minimalist tendencies for other things that matter to him. but that will create a different dynamic and he will look for ways in which to pick up the difference in little bit in the way that kennedy, especially when kennedy was writing, he was and is interested. that is a big difference. >> and that is between justice kennedy and justice o'connor. typemuch a this day only of justice. whereas kennedy was not a one-day only guy. many cases. citizens united and other cases. other benefits to having a justice, when the country is so polarized? >> i hope so. [laughter]
>> i think my answer, it goes to my gut reaction to what you said -- was saying. often when justices are characterized as conservative or liberal or moderate whatever, for example the late judge there weresed to say conservatives and there were moderates on the court. to anothertalk subset of my friends, they would say yes, there are liberals on the court and there are moderates. say this will be the first time that we don't have a moderate because roberts is no moderate, that is all very much -- that doesn't have an objective meaning. there is mathematically a median. one consequence of having a median, rather than having a median where there are -- is a
lot of empty space on the left and the right, you could to find the median as having a lot of power. if you have a median the clusters together with others, that median justice has less power especially if close to someone else, they might switch around. you have many justices playing the role of median. i said earlier i do not know if that is particularly meaningful but if you think something is problematic with someone really being so in the middle and actually being moderate when others are not, and there is a lot of room -- room for them to move around, then you do have one individual having a lot more power. you agree about skepticism about characterizing judges is liberal and conservative? >> after sitting here all day, absolutely not. most doctrinal among your characterizing the left side of the court, the right side, the liberals and democrats. so no. great >> i am not
skeptical about it, especially after sitting here today. people who think there is a doctrine left on the court talking about the court in political terms. a think most political scientists think the data about liberal and conservative justices is very valuable and tells a real story. assuming that is true for a moment, how do we fail to characterize justice kennedy's career. as a liberal and not as a conservative? i don't think so but maybe. moderate conservative? where does he fall? of the data, he voted with the conservative side of the court, generally. there are a few areas we talked he moved overere and joined the liberals. that is why when you look at the the probability he was the median justice is so high. because he occasionally made the move over. but not all that often.
>> is it just a function of numbers? this might be the most serious question i have asked. it turns out if justice kennedy had different views on abortion, andrights, and term limits, citizens united, those four cases, if one person had different views on those four cases, this country is so different. millions of gays and lesbians would not build get married today. i think citizens united has had an effect on our politics. obviously, without kennedy, roe v. wade gets overturned in 1992. laypeople understand how important it is. twiceon can be legal and
68. gays have the right to get married parents citizens united never happen and it keeps going on. what does that tell us about justice kennedy, the court, or the judicial review we have in the country? ideawill push back on the that is meaningful that all those four points are coinciding in a signal present. if people's views were less correlated among issues, you would have four separate people and you would say, well, if kennedy had a different view on gay-rights and of prior had a different view on abortion, and if sotomayor had a different view on abortion, and your imaginative and you imagine a different world where you change dimension, in one that is the identical different world. thosemeaningful that dimensions are sufficiently correlated? that is the question i'm asking. from 2005-2017 and even before 2005 on very important issues,
justice kennedy -- i'm asking a human question here. justice kennedy went to his chambers and he knew how he voted mattered. it is not true of sotomayor and scalia and many cases. it is only true in most cases that we care about what we're talking about for justice kennedy for a long time. that is why we are having this symposium today. justice o'connor was a very important justice. kennedy was the most important. i'm not understand your point. >> i agree in one sense. which is that kennedy's vote really mattered in a very specific way. i definitely agree with the idea of the median justice, i think we should also not lose sight of different types of power wielded on the court. if i'm justice thomas, my vote doesn't matter in the sense that my view actually determines the role but
my view determines who the median is. i have to be there voting so this particular person -- if you put justice marshall back, someone else pluses median. the sensetters in that they determine who the median is. there is a lot of very interesting literature on which i ought to read in conjunction with all of lease papers. -- lee's papers. who is the distribution matters, but now, my colleague at emery and the political science department has a recent article where he talks about what the majority is depends on people's views on who wins the case. if the views on who wins the case differ, they also have views on what is the optimal legal rule, if they have different views on that, once the majority of five justices is
determined, then there is a median of that coalition and the median justice of the coalition also has a more limited median justice power to decide what the role will be of the many rules that coalition could sign onto. in addition, there is a view that the opinion author has a power when they are writing opinion. kennedy isief feels squishy, he can assign it to kennedy and kennedy will write a -- an opinion he will agree with. scalia has a certain ability to choose with the rule is, it is constrained by the constraint that kennedy should not defect from, but it gives kennedy a lot of maneuvering room. there are a lot of different kinds of power that different justices have. it is not just a single one median oneed by the
mean it would have all the power but because of institutional features and dynamics of the supreme court we have a lot of centers of power in a lot of different cases. >> i will make you happy and say a verystice and the was powerful justice in some very important cases. how is that? and everyone knew it. understood they were living in justice kennedy's world. the only thing i would add is, and i guess we will find out soon enough, is the effect justice kennedy had on the docket. the law that both sides of the court avoided, because they were uncertain on how justice kennedy would vote in those cases the median justice model, in my report, it is a voting model.
it doesn't say anything about the law. >> an expert, he has written some articles suggesting we've not seen a gun case because no one knew how justice kennedy would vote. power --ther >> we will find out soon enough. that is the expedition for the decline in the docket. i thinkee but also, what is interesting is in in the supremeds court history, we often identify one or two justices who we think had a particular influence in the course of the court. it has usually been the chief, not always. why were are reasons expect that to be the case.
to underline that point of the symposium, the combination of justice that had such a dominant role on the doctrine in high-profile areas while being the median justice but not necessarily being a moderate, that constellation of factors -- when we talk about the kennedy we talk about a different type of influence over the court then we talk about times of the court that are defined by supreme court justices using various forms of power in the effect ona big doctrine and the type of cases and so on. that is why this has been a worthwhile day. effect on the court that was significant and distinct and worthy of trying to understand. >> really brings me back to my earlier question of is fame free
eating -- leading for him? he point out abortion and affirmative action. that carolyn talked about, this has all just vanished. >> when johnson was talking, homes in frankfurt, marshall, i do not know, i would be very surprised if kennedy is viewed in that way though he was more dominant certainly more than the other justices. >> so was clark in the 50's. so was read in the 40's. >> i do not think they're going away. how broadly they extend is a separate issue. they will always be tied down. i think was more likely to theen is 50 years from now,
cultural understanding of justice kennedy will just be about those cases. the other aspects of his jurisprudence, for right now, so significant, and meaningful in terms of doctrines we do it today, that might be what we forget justice kennedy, who was conservative most of the time in 54 cases in the roberts court, he voted with the conservative something close to two thirds of the time. where the two thirds went split along the lines. that is what we had forgotten, depending on what happens. it is hard for me to imagine. >> it is hard to imagine the course of history, president trump as president.
plus i think when we talk about whose legacy will be enduring, on the panel, i talked about, if you take the simplest model where any decision can just be overruled, everything is just determined by who is the median tomorrow. whereas, if you have a model where an opinion is costly to overrule, you get some indifferent. that gets us to a way of distinguish and what kinds of opinions are likely to be more enduring than others. one is a pure doctrinal thing where a few writing opinion that is so much that anyone could that is great, the opinion will be precedent for ever, but the content of that opinion will constantly change because it can be reinterpreted. that is why the abortion right ,an be radically reduced without ever ruling mcdonald.
you have a role easy to state hard to apply. it might have more staying power another another type of islamic changes facts on the ground. if you have an opinion that imposes gay marriage on places in the country where it other -- would not otherwise exist clinically, you have people actually getting married and making wise for themselves. that creates a different reality on the ground which is very difficult for later legislative agenda -- majorities to do and later judges to undo. hand, probably the legal availability of abortion is not something that has engendered those kinds of reliance interests. abortion and gay marriage were kind of different in that sense. >> i agree with that.
i slidably take some questions? then we will call this to an end . anybody? go ahead and don't be shy. speak into the microphone. >> i was going to let other people go because i asked questions on previous panels, but since they're not going at, i will ask on this one. my question is primarily for eric and others can jump in. i am trying to understand the nature of your objection to kennedy's role. is it simply that you dislike cast at that one person pivotal vote because of a close five-four decision, or you dislike the fact that it is the same person in a bunch of various where -- or is it some, nation of the two, and if it is really ultimately about one person, does that suggest maybe they can of other aspects of the political system where one person makes huge decisions, obviously the president can make huge decisions about war and peace in many cases and can run
the lives of many people and that has happened, so does that suggest maybe we should have a floral executive or it is illegitimate or fundamentally wrong for one person to make those decisions, or if it is him human supreme court, should there be a rule that supreme court decisions must be 63 or 72 -- 6-3 or 7-2? how do you resolve these question mark what is up what actually concerns you here? >> i am on record many times over saying justice kennedy was our most transparent justice. within the system we currently have, i disagreed with him probably 75% of the time because i'm a progressive that i think the way he did it was the best we could hope for because he did it honestly and transparency and did -- transparently and did not care much the hiding behind legal rules. i think his median justice importance for 17 years and
really before that because other than affirmative action, where justice o'connor -- justice o'connor was the median, i think he was the median before that. lunacy for a democracy to have a highest by death,he land act illness, or politically timed retirements. and because our supreme court is a roll of the dice in many thomas, i'mtice sorry, justice marshall stays on, six more months, american history has changed forever. there is no test, some supreme work, no citizens united, no heller, no any of those cases. justice kennedy is the logical conclusion to an illogical system. it gives an unelected tenured government official this much power. i have no objection to kennedy per se.
i think he did it, given the weight on his shoulders, i do think what we talked about earlier is really important here, this human being new for that on virtually every issue of constitutional law, what he said would be the rule of law for the united states. a system that leads to that is a little bit loony. i'm in favor of a 4-4 divided court to the president is elected and congress is elected and we can be cynical about that in public choice and all, but there is a difference between the role of president is supposed to play and the role the median justice is supposed to play. not kennedy per se. i've just to a system that gave rise, and lay people understand this very well. while of this country seat to one person for 17 years, pretty much unique responsibility over
all of these social and cultural issues that divide us as a country? >> it seems to me what you are saying really would apply to -- with equal force to every -- it is the fact that -- >> no, human dynamics. the idea that one person, you know, the lakers, i do think would weaken michael jordan's bulls because they had more weapons and tools. the dynamic changes with google have responsibility is, i think putting this responsibly on one person, who loved it, obviously, i think. it is not the same as revolving door of justices who matter question and suggest. in one sense, your complaint actually grace an argument made by justice scalia. though i think he would have formulated it differently. his says that the more aggressive the court guests with
the moreial review, the consequence of who is on the court. hadould argue that implications. that is onement was way to structure of the court, and on or even number of just and terms of supermajority vote and so on, that is one way to think about it. the other way might be what sorts of courts with a decide? while scalia did not always exhibit this in his own jurisprudence, one answer would be, well, have the court decided in the a lot more to the process and then, when justice kennedy retires, and the president nominates his replacement, that we don't have what we have witnessed in the last several weeks, which is political trends
-- trench warfare over the replacement because of predictions about what the replacement won't mean. that would be an alternative, which you might be sympathetic inappear >> scalia's dissent -- is perfect except for he did not abide by it in 131 cases when he struck down -- >> was going to say robert originally that argument and there is a reasonable amount of an data to support it. >> i am making that article today for my new book. go ahead. >> i just dropped the microphone not on purpose. my question goes to at the professor is saying. don't we want justices on the supreme court to have to
persuade each other and bring into aher to gather consensus opinion that provides clarity, and if we want that, to your point, it can be a different justice for each important decision. isn't that what our system has, historically, and please chime in if i'm wrong, historically, isn't that where we wanted our supreme court to be? haven't the we wanted collegiality, discussion, in order to come up with the best answer as supposed to investing all of the decision-making in anointed orho is everyone decided is the median justice and the person who ultimately control decision-making? >> i would say no one anointed justice kennedy. i am imagining there is a guy in
, and actual really moderate , i somehow find myself agreeing with everything made in america. left and right decisions sometimes. i always agree with them. it must be that exactly 150 million people are more left than me and the others are more right than me. i am the median guy. anointed this person so there is no reason by definition that these views hold. mathematically, someone will be the median. that is the way mathematically that decisions get made. i do not find it problematic that someone is the median. if it turns out people's views it is the correlated, contingency that that person happens to agree with everything being done.
it is not his fault and not to his credit. that some role has to be chosen and it has to be that that person agrees with it. as a matter of, do we want to be peopleation and winning over to consensus and so on, quite frankly, i do not know whether that is good. whether people come to the supreme court with deeply felt views and they are not persuadable, because they thought about the views for 20 congress,e goes to 201 people in congress to persuade each other or vote their view? i do not have a strong belief about it. i think if everyone went to congress and don't -- voted their view that they were totally un-persuadable about and that would be the result, i think that would be a fine way to run democracy. i have never been a big devotee of the deliberative model of democracy, rather the
attitudinal model of democracy. i do not know if that is so great. will be thesomeone median because that is just mathematically how things shake out. it turns out that kennedy was the one and i do not find that problematic. a in terms of the question as historical matter, do not think the court was necessarily created with this idea in mind. we certainly saw a lot of what we would characterize as partisan infighting. certainly chief justice marshall practice ending the opinions, you can find a lot of significant cases in the 19th century were justices would dissent and did not feel the need to write an opinion, which would be unheard of now. the justice was too ill.
we certainly want the court that he felt strongly that when the court used its institutional capital in certain sorts of cases, it is important to speak of the court. aspired toce roberts that. i think that is worthwhile. we had gone to a point where there is too much focus on the personality to restore that thing, that is a question. but looking at the history, it is hard to dismiss the idea that there is value in the court having an institutional voice -- it may be a historical artifact we will never have again and it may be something to aspire to. i don't know. for a long time, we had a strong norm of consensus on the
supreme court. if you go back to docket books in 1870's, you see justices disagreed as much as they did say but did not make this public. on many supreme court's. they try to work it out, they try to reach consensus. i have sat through entire political science conferences where we had debated, is a normal consensus good? i have no one single answer. justin -- justice kagan has made it a point last year to repeatedly sing more than two or three times that the for-four court had the advantage of exactly what you're talking about p or they had to persuade each other more, write opinions, and she is clear that she doesn't want that forever but she is saying that a lot for the reasons you talk about.
i wanted to mention that. thing i have not been able to get my head around with this, and i thought maybe we would talk about it at the end of the conference now, it is that kennedy chose to retire now. i just think, for the guy who is so much about a committee and the civilized conversation, it is surprising to me. i would have guessed, not this president, especially knowing, because he did know how much power he had for 17 years, so it is bizarre to me that he chose now. i even thought if you cannot hang on, would you hang on past the midterms? because frankly, then at least it is up to the people. they either change the senate or they don't. but then it forces a compromise or it doesn't. but democracy has had its way. i am wondering what your
thoughts are on that. >> i am not surprised decided now. if you think about what are the cases that justice that i aboutritten and are most likely at risk, i think it would be reasonable for him to say citizens united was more at risk replaced by democratic president if he is replace center -- by a republican, for no other reason than public opinion. both sanders and clinton said in on abortion,that his opinion is in the middle. he doesn't want the outcome that a likely democratic nominee would want, and elimination to a more permissive regime just as he might not want the
elimination altogether, and he did vote with the right more often in -- then the left, about two thirds of the time. he saw himself as a republican. if you listen to the oral argument, it is clear in so far as we are on teams and everything else, that is what he thought was his team. i think there is a certain logic to it. -- >> are you suggesting his retirement was politically timed? try and think about what matters to kennedy as opposed to what might matter to us about kennedy, i think it makes a lot of sense. things there are other you can add to the picture. i think there are issues we do not associate with him that were important to him. one of his last opinions, and
administrative law case, he writes a concurrence about how lower courts are not applying chevron discriminate we enough. thomas who is very much in line with his voting in his opinion in gonzales versus whatn, if he is thinking, is a justice appointed by donald trump with the advice of don mcgann likely to care about, this issue, you look at his voting and it is hard not to see the issue mattering to him. some sense to him. i also suspect that the gorsuch , the partisan aspect of how the confirmation played out, and the appellate nominations of the trump administration all reinforce that decision.
he liked the gorsuch nomination, you like the overall caliber in his view of this administration and the appellate nominees, and a saw someone he thought was strong nominee replacing justice scalia. something that would not affect the balance of the court, nonetheless produced a truly partisan vote, and i cannot wait for the midterms. i think there is a logic there. >> and his son was donald trump's banker, go ahead. >> assess -- it may not be all that surprising that he retires while a republican as president, but since the republican happens to be trump, you would think he is the sort of republican that wouldn't be wild about trump. if i'm getting the subtext right, look, i'm really against trump and i see what you are coming from.
everything trump touches turns to garbage, it turns out trump seems to have been not at all caring about judicial appointments. so the supreme court and most appellate court nominations are run by the same sort of federal society lawyers in control of a rubio or ted cruz nomination. if i am i'm kind of iffy about bunch of recent appointments, would i think make me super confident. it would allay a lot of my , just seeing the kinds of people who are being nominated. >> ok. last question of the day, i want to say it should be a surreal quality to the idea that we are
the only democracy in the world that allows its high court justices highest court justices to retire when they want and how they want, or never. with somehe case justices. i was surprised by these answers to an extent and i was surprised by them because i think they're probably right. that means he made a political calculation about when to retire and we shouldn't put up with that as a country. go ahead. >> as i understand it, justice kennedy was in the majority about 90%, is that right? >> something like that. >> no, no, no. 5-4. >> let's say 70% of the 5-4 decisions. but most of those were presumably, here
justice thomas was in the majority not 70% or 10% maybe 55%. if justice tom's decided you know, i have changed my way of thinking, and he decided to vote the other way in citizens united, we would also have had opposite results. we would have had it in a smaller range of cases. drive it is would no unsuspected justice thomas. it is not that he lacks the power is just that we're pretty confident how he would use it. it lacks drama. maybe justice kennedy had power one.%, not a huge we were just not sure where justice kennedy would go. situationimagine a where justice kennedy was also a swing voter but completely
predictable. we just happen to know where he would go on everything because he had spoken so clearly about it. he would again be a swing voter. factorten the deciding than the others. the result would be 70-55. i'm wondering if we are exaggerating as a result. >> i think there are two separate issues. one is whether they are the median and the other is whether they are protectable. if you are not sure who it is, sometimes you have a median vote or you know you are in the -- the median but you know they are somewhere in the middle but could be here or here or someone could be the median and you know exactly where they are, i always think of it in the world. nearbyld imagine universes were kennedy is here or here. are close universes. in all of those, the change of kennedy changes the rule. changes, itlose
doesn't change the rule because that is changed by kennedy. >> part of the idea is in a lot of those cases, if you imagine ideal points, moving it from here to here is a bigger -- one, and mike, forgive me when i suggest this, it is possible that human beings, this country has a tendency to not seek court justices us human beings. these are human beings. one of theble that reasons justice kennedy was the swing justice for 17 years was he wanted it to bp or in other rick of notre dame believes this. if i am wrong, i apologize. on is awhat is going nonlegal and nonideological, nonpartisan personality trait that this person would like to have control. in that,is any truth
i'm sure there is a little, enough truth to maddow -- to description, was what kind of institution this supreme court is. /demeans 10lieve minutes ago the idea that you asked that we should have andberation and persuasion try on incredibly hard issues, 40% or 30% of cases that are really hard, wouldn't we want them to going to a room and fight it out and they do not do that. they do not hear maybe they didn't because they knew it didn't matter. justice kennedy was going to take it over anyway. does anyone want the last word on that? all right. i will give it to you. >> i agree with you they do not do enough. but we do know of cases in which cases in whichd,
a school he lost a majority because he would not tone down his rhetoric. that in which it appears whoever was assigned the majority opinion just wouldn't waye and wooden work the they thought it was going to. and that matters. it is not as if they just say, ok, my team is on the side and we are done. they still have to be able to write and justify the opinions. they do that more convincingly than others sometimes. but a think we are not being fair if we assume that is all that is occurring. too many points suggest people of --bile and some sort in some cases. >> it would take great character to refuse the temptation to have the career the just as happy that people may exist but it would take a person of great character. thank you, everybody, for coming. and thanks to the panel. i hope you enjoy the day.
(202) 628-0184 [captions copyright national cable satellite corp. 2018] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> you are watching american history tv. follow us on twitter for information on our schedule and to keep up with the latest history news. >> cornelius earl rumsey it -- was an avid collector of native american artifacts from around the united dates. the riverside metropolitan museum was founded when rumsey donated his collection in 19.4. we visited the museum's collection center to see some of the items mr. rumsey gathered. >> the founding collections focused on artifacts such as this one. it is a bandolier, a bag that