Supreme Court Justice (nominated by Pres. Reagan 1988)
Write judicial opinions with clarity instead of legal Latin
Former clerk Daniel Rubens remembers, "Kennedy is a morning person. The joke was that he would see Ginsburg on his way in and she was on her way out." No one has ever doubted RBG's work ethic. She used to be known for bringing a penlight to the movies
to read her mail during previews, and to read briefs in the golf cart between strokes. As a child, her son would wake up in the middle of the night to find his mother scribbling away at legal pads spread across the dining room table, popping prunes.
"If my opinion runs more than twenty pages, she said, "I am disturbed that I couldn't do it shorter." The mantra in her chambers is "Get it right and keep it tight."
She disdains legal Latin, and demands extra clarity in an opinion's opening lines, which she hopes the public will understand. "If you can say it in plain English, you should," RBG says.
1987: No unitary theory of interpreting Constitution
In 2 days of hearings in mid-December, Kennedy "I do not have an overarching theory, a unitary theory of interpretation
[of the Constitution]," the nominee said. "Many of the things we are addressing here are, for me, in the nature of exploration and not in the enunciation of some fixed or immutable ideas."
And he cited as "central to the idea of the rule of law . . . that there is a zone of liberty, a zone of protection, a line that is drawn where the individual can tell the Government: Beyond this line you may not go."
On 2/1/1988, Kennedy won unanimous support of the Judiciary Committee and 3 days later of the full Senate by a vote of 97-0.
OpEd: a common-law constitutionalist; uphold prior opinions
Justice Kennedy's assiduous focus on the justices and the constitutional case law of the 1930s signaled much more than a commonly shared judicial interest in constitutional history.
Time and again in the course of his opinions, he focuses extensively on the Court's case law.
He reasons and analogizes from what is already found in the Court's jurisprudence. He distinguishes, carefully, cases handed down by prior Courts.
Kennedy is, in short, a common-law constitutionalist. He appears most offended when the Court departs from what he sees as the logic and thrust of its prior opinions.
Bush v. Gore: can't recount votes fairly across counties
The Court reversed the Florida Supreme Court decision ordering manual recount of presidential election ballots. A majority agreed that the recount violated the Constitution's equal protection clause, since counting standards varied among counties. The
decision effectively ended the presidential election, handing a victory to George W. Bush.
Holding (Rehnquist, Kennedy, O'Connor, Scalia, Thomas): "Any manual recount of votes seeking to meet the deadline would be
unconstitutional under the 14th Amendment." [Recount cannot be done fairly by the deadline].
Concurrence (Rehnquist, Scalia, Thomas): "The state legislature has provided mechanisms for contesting election results." [no federal intervention needed].
Dissent (Stevens, Ginsburg, Breyer, Souter): "Counting every legally cast vote cannot constitute irreparable harm. Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election." [Count every vote].