Did the Tenth Amendment Amend the Commerce Clause?
The Federalist Society on Federal Criminal Laws

Doctrinal Biography of Justice Anthony

[Editor's note: For a class project I wrote a doctrinal biography on AMK.  I decided to post it here, even though it has many flaws and requires a lot of work. Also, the citations are in end notes, which I can't seem to post here.]

Free Speech - Justice Kennedy’s greatest contribution to the Rehnquist Court is his Free Speech jurisprudence.  The single most important aspect of Justice Kennedy’s jurisprudence on any issue is his disdain for content-based restrictions on speech that carries over to many seemingly unrelated issues.

In Simon & Schuster v. New York Crime Victims Board, the Court struck down a New York law that seized any profits gained from writings criminals or alleged criminals or wrote about their crimes.  The Court struck down this content-based restriction on speech because it was not narrowly tailored to meet a compelling state interest.   Concurring in the judgment, Justice Kennedy suggested that the Court apply a per se prohibition on content-based restrictions on speech.  The compelling state interest test is too weak a test to apply to content-based restrictions on speech.  Last Term, in Republican Party of Minnesota v. White , Justice Kennedy concurred in a judgment striking down a content-based restriction on speech (in this instance a prohibition against Judges engaging in curtail political speech when running for office) reminding the Court that content-based restrictions on speech should be per se invalid unless they conflict with another provision of the Constitution, as in Burson v. Freeman , where Justice Kennedy concurred in the judgment upholding Tennessee’s restriction on political solicitation within 100 feet of a polling place because the right to vote without being accosted outweighed the speech interest at issue.  Nevertheless, Justice Kennedy noted that it was a category exception of cases where he would uphold a content-based restriction on speech. 

A friend of federalism,  Justice Kennedy ordinarily defers to State judgments and believes its reasons proffered for those judgments.  He does not do so when speech issues are implicated.  “[U]nder the First Amendment the public, not the State, has the right and the power to decide what ideas and information are deserving of their adherence.”   Thus, in Hill v. Colorado,  Justice Kennedy dissented from the majority’s shallow assertion that a state law prohibiting leafletters from coming closer than 8 feet to people approaching health care facilities was merely a content-neutral time, place, and matter restriction.  Unlike the restriction in Ward v. Rock Against Racism , Justice Kennedy saw the Colorado law for what it was – a restriction on the right of anti-abortion protesters to engage in otherwise protected speech.  Justice Kennedy also declined to join the majority’s highly deferential treatment of States’ rights as to voting restrictions in Burdick v. Takushi , where the majority allowed Hawaii to prohibit  write-in voting. 

Justice Kennedy's antipathy toward content-based speech restrictions reaches into the Free Exercise Clause.  In Lamb’s Chapel v. Ctr. Moriches Union Free School Dist. , Justice Kennedy concurred in the judgment that denying religious groups access to a limited public forum implicated a content-based restriction in speech, namely religious speech.  In Rosenberger v. University of Virginia , Justice Kennedy wrote the majority opinion that Virginia’s withholding of funds to student religious group was impermissible restriction on speech, Free Exercise issues notwithstanding.  Moreover, Justice Kennedy, while not providing greater protection to commercial speech, voted with the Court to strike down an ordinance prohibiting “commercial handbills” as an impermissible a content-based discrimination against commercial speech.

Although, in theory, Justice Kennedy would offer commercial speech no more protection that that provided under Central Hudson , Justice Kennedy does apply this test more vigorously in practice.  Specifically, rather than accepting the State’s proffered reason for the restriction, Justice Kennedy taps the wall to see where it echoes hollow.  Thus, in Edenfield v. Fane , Justice Kennedy wrote the majority opinion applying Central Hudson test in more stringent manner in striking down Florida’s ban against CPA solicitations.  Also, in Florida Bar v. Went For It, Inc. , Justice Kennedy dissented from the majority’s application of Central Hudson three-part test that denied plaintiff’s council from contacting a potential civil plaintiff until 30 after an accident.  In United States v. United Foods, Inc. , Justice Kennedy wrote majority opinion holding that First Amendment prohibits government from compelling speech, even when its commercial speech.  But see  Glickman v. Wileman Brothers & Elliott, Inc. , (applying Central Hudson test, joined majority upholding regulations promulgated under Agricultural Marketing Agreement Act of 1937 that compelled agricultural producers to provide money for advertising that some members disagreed with.)

When it comes to campaign finance law, Justice Kennedy believes “that campaign finance laws are subject to strict scrutiny.”   Under this test, “broad prophylactic caps on … giving to the political process … are unconstitutional,” because they are not narrowly tailored.   In Nixon v. Shrink Missouri PAC , Justice Kennedy dissented from judgment affirming restrictions on amount of money PAC can contribute to political candidate and said he would overrule Buckley v. Valeo.

Federalism -    “Federalism was our Nation's own discovery. The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each.”   Justice Kennedy’s has shown his support of federalism in four crucial ways by limiting Congressional power under the Commerce Clause  and Section 5 of the 14th Amendment; reading “teeth” the 10th Amendment ; galvanizing the 11th Amendment ; limiting disruption of the finality of state court judgments ; and limiting a State’s ability to punish an in-state defendant for out-of-state conduct.

In United States v. Lopez , Justice Kennedy joined the majority in striking down the Gun Free School Zones Act of 1990, which made possession of a firearm within 1000-feet of a school zone a federal crime.  For the first time since 1937, the Court limited Congress’s power under the Commerce Clause.  Concurring in the judgment, Justice Kennedy spoke of what he found most offensive about the GFSZA, namely it “forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and experience.”   Justice Kennedy has also joined and authored decisions holding that Congress may not abrogate state sovereign immunity from suit using its Commerce Clause power.   Nor may Congress do so under its Patent Clause power.   Moreover, although Congress may abrogate state sovereign immunity from suit, it may do so only using its Section 5, 14th Amendment power, and then only where Congress shows a pattern of unconstitutional state action.   Any remedy fashioned therefrom must be proportion ional and congruent to the proven harm.   The 10th Amendment also limits Congressional power over the States.  As such, Congress may not “commandeer” state officials to enforce federal law. 

Justice Kennedy also favors limiting judicial power over the States.  Thus, the finality of state court judgments must not be disturbed on collateral review unless the state court violated clearly established Supreme Court precedent.   Justice Kennedy also suggested that Ex Parte Young 11th Amendment stripping should be severely limited to only two categories of cases: Cases “where there is no state forum available to vindicate federal interests” or where “there is showing of particular need for federal court intervention and enforcement of federal law.”   This radical narrowing of Ex Parte Young was joined only by C.J. Rehnquist.  Justice Kennedy also favors a more vigorous exercise of the abstention doctrines which, “are a significant contribution to the theory of federalism and to the preservation of the federal system in practice.”

Justice Kennedy’s federalism jurisprudence also recognizes the proper role of states as to other states and states as to the Federal Government.  In BMW v. Gore , and later in State Farm v. Campbell , Justice Kennedy voted with or wrote the opinion limiting a state’s ability to punish a civil defendant for out-of-state conduct.  It is improper for a state to punish a civil defendant for conduct that in another state might be legal.  In U.S. Term Limits, Inc. v. Thornton , Justice Kennedy concurred in the judgment striking down Arkansas’ law that imposed term limits on candidates for national office.

Separation of Powers - “Separation of powers was designed to implement a fundamental insight: concentration of power in the hands of a single branch is a threat to liberty.  The Federalist states the axiom in these explicit terms: ‘The accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.”

Justice Kennedy’s jurisprudence places high walls between each branch.  Thus, Justice Kennedy concurred in the judgment denying the President a line-item veto, thereby ensuring that the Executive shall not have legislative power and that no bill shall become law absent Bicameralism and Presentment.  Justice Kennedy wrote the majority opinion in City of Boerne v. Flores , where the Court struck down the Religious Freedom Restoration Act and thus denied Congress the power to interpret the substantive contours of the 14th Amendment, as it belongs to the Judicial branch to say what the law is.  In Gonzaga University v. Doe , Justice Kennedy joined the Court’s strong language in refusing to imply a private right of action under the Federal Education and Rights Privacy Act.  Henceforth the Judiciary is not to imply a right of action unless Congress clearly and unambiguously states its intent in the statute, for granting causes of action is for Congress, not the Courts.  Justice Kennedy also joined the Court finding Judge Nixon’s challenge to the Senator’s method of impeachment as nonjusticiable political question.   The Constitution allows Senators to “try” those who have been impeached, thereby demonstrating a textual commitment to a co-equal branch that should not be upset by the Court.   

Statutory Interpretation - Justice Kennedy’s approach to statutory interpretation is ever mindful of respective separation of powers and the avoidance of Constitutional question.  He applies the “plain meaning” rule when interpreting statutes so that the Court does not do Congress’s job, namely make law, and describes his approach as follows: “[F]irst, find the ordinary meaning of the language in its textual context; and second, using established canons of constructions, ask whether there is any clear indication that some permissible meaning other than the ordinary one applies.”   Two cases illustrate this test in action.

The issue in Chisom v. Roemer  was whether § 2 of the Voting Rights Act covered judicial elections where the language of § 2 clearly indicated that is only covered the election of “representatives,” since § used the work “representative.”  Justice Kennedy dissented from the Court’s holding that “representatives” mean judges who are running for election. 

In Morse v. Republican Party , at issue was whether a private association was a state actor under § 5 of the Voting Rights Act even where the private association does not perform a traditional state function such as holding a primary.  The Court held that a private association who places a $50 membership fee was a state actor under § 5 of the VRA.  Dissenting, Justice Kennedy reasoned that if Congress had intended to prevent private discrimination, it would have stated that no “political party” may discriminate based on race.  Again, Congress reminded his fellow dissenters (who were questioning whether to overrule certain provisions of VRA) that “With respect to [Section 5 of the VRA], this statutory construction case does not require use to explore the full reach of Congress’s substantial power to enforce the [13th, 14th & 15th Amendments.]”  Justice Kennedy also dissented from the majority’s finding of an implied private right of action under § 10 of the VRA.  This result is demanded by the plain meaning of the statute, for if a statute intends to imply a right of action, it would do so under its very terms. 

Congressional Power Under the Commerce Clause - Justice Kennedy’s jurisprudence as to Congressional Power Under the Commerce Clause is best read in conjunction with his Federalism jurisprudence.  See Federalism, above.  One notable exception is Jones v. United States , where the Court refused to let stand Jones’s conviction under 18 U.S.C. § 844(i), which the United States alleged made it a crime to burn a private residence that had no effect on interstate commerce.  Justice Kennedy does not read a general police power into the Commerce Clause and thus Congress may not penalize purely private crimes having no impact on interstate commerce. 

Free Exercise Clause - “Under the Free Exercise Clause, a law that burdens religious practice need not be justified by a compelling government interest if it is neutral and of general applicability.”   Justice Kennedy’s Free Exercise jurisprudence, if it call be called that, comes into play primarily when there is overlap between a Free Exercise and Free Speech issue.  The state must treat religion “neutrally.”  In other words, a restriction on religious exercise is often analyzed as a content-based restriction on religious speech.  As to other behavior, he provides little protection outside of his “no content-based restrictions” jurisprudence, evidenced by Lukumi Babalu v. City of Hialeah, where he wrote for the Court upholding the penalizination of animal sacrifices, since the state prohibited cruelty to animals, religious reasons notwithstanding.  Justice Kennedy’s speech jurisprudence, when applied to Religious Freedom, is no joke.  In Lamb’s Chapel v. Ctr. Moriches Union Free School Dist.  Justice Kennedy concurred in the judgment against a New York school denying access to a limited public forum to a Christian group.  “Given the issues presented … this viewpoint-based discrimination contradictions the Speech Clause of the First Amendment.”

Economic Liberty - Unlike Federalism and Free Speech, where Justice Kennedy is willing to break new ground, conduct a searching analysis of the issues, and issue concurring and dissenting opinions to clarify and refine his positions: Justice Kennedy offers little originality or vigor to the Takings, Contracts Clause, and Privileges and Immunity Clauses, although he is “pro” property rights.  Applying the Penn Central test for regulatory takings, he found a taking where a regulation prevented a hurricane victim from rebuilding his home ; and where conditions imposed upon for a change of use bore no rational nexus to the alleged harm caused by the improvements.   However, in Lake Tahoe, he did not find a 3 year moratorium on building a taking.   He found a per se taking where Michigan used its draconian civil forfeiture statute to steal from a joint-owner without paying just compensation, a car that the other joint owner used to solicit a prostitute.   He also found a per se taking where a State seizes client money to pool the interest with other clients to fund “public interest” litigation.   Justice Kennedy has not made any real contributions to an understanding of the Contracts or Privileges and Immunities Clauses.   

Criminal Justice - Jurisprudentially, Justice Kennedy offers very little to Criminal Justice under the 4th, 5th, and 6th Amendments.  More often than not, he sides against a citizen alleging a 4th, 5th, or 6th Amendment rights violation.  In United States v. Drayton , Justice Kennedy wrote the majority opinion holding that police officers may enter a bus, take positions on either side of the bus, and not tell passengers they are free to leave, without violating the 4th Amendment.  Rather, any search resultant therefrom is “consensual,” because any person would feel free to leave. (!)  In Kyllo v. United States , Justice Kennedy dissented from the Court’s holding that thermal imaging systems violate the 4th Amendment.  In Chavez v. Martinez , concurring in the judgment he said, “Failure to give Miranda warning does not, without more, establish a completed violation when the interrogation ensues.”  Therefore, it does not violate the 5th Amendment Self-Incrimination Clause where a police officer tells a suspect that the police officer just shot that the suspect will not obtain any medical help until he answers the officer’s questions.  In McKune v. Lile , Justice Kennedy wrote for the Court that a program whereby the defendant must admit to prior criminal uncharged wrongdoings does not violate the defendant’s 5th Amendment right against compelled self-incrimination because the defendant would not “punished” but instead only be denied privileges.  It was not persuasive to Justice Kennedy that a proximate result of the defendant being denied the privilege of a 2-inmate cell would be his removal into a 4-person cell where he would almost certainly be sodomized.  In Shelton v. Alabama , Justice Kennedy voted against extending the right to appointed counsel in misdemeanor cases where the defendant faces the possibility of jail time.            

Unenumerated Rights - Reading Justice Kennedy’s unenumerated rights jurisprudence seems to show an unwilling libertarian.   And so, in Lawrence v. Texas , Justice Kennedy, in finding a due process violation in a statute prohibiting sodomy makes the sweeping statement that:
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.

Strangest about this statement is that generally a due process violation occurs only where there is some concrete interest involved, such as the right to be free from incarcertaion, or the liberty to practice one’s profession.  But in Lawrence, Justice Kennedy does not say that you have a liberty interest in engaging in homosexual sodomy.  Rather, Justice Kennedy said that you have a liberty interest in – well – liberty.  Most relevant and interesting about Lawrence is the analytical background he relies upon in reaching his conclusion.  Namely, Justice Kennedy relies on Griswald v. Connecticut  (finding right of married couple to use contraceptives); Eisenstadt v. Baird  (finding right of unmarried couples to use contraceptives); Roe v. Wade  (the right to terminate the life of a fetus); and Carey v. Population Services Int’l  (find right of unmarried minors to obtain conctraceptives).  Thus, in one fell swoop, Justice Kennedy makes clear his position on the unenumerated right to contraceptives, although his earlier cases pointed this direction.

In Webster v. Reproductive Health Services  Justice Kennedy concurred in the judgment upholding a Missouri law that sought to protect the unborn, sanctioning the preamble to the law that "[t]he life of each human being begins at conception," and that "[u]nborn children have protectable interests in life, health, and well-being."  Then, three years later, in Planned Parenthood of Penn. v. Casey  Justice Kennedy co-wrote the guts of an opinion that unequivocally upheld a woman’s “right” to an abortion, finding a due process “liberty” interest in the right to kill a fetus.

Constitutional Interpretation - It seems that Justice Kennedy reasons from the text, history, and structure of the Constitution, but he is not an originalist or textualist, as no originalist or textualist would read into the Constitution the enumerated rights he finds.  See Unenumerated Rights, above.  One scholar describes Justice Kennedy’s method of constitutional interpretation as “structural” where “structural arguments differ from their textualist cousins by focusing on the federal structure as a whole rather than the structure of particular textual provisions … [and by] emphasizing the historical understanding of the Constitution’s structure rather than its present day imperatives.”   This thesis has strong support in Alden v. Maine, where Justice Kennedy wrote for the Court holding that a state has sovereign immunity from suit in its own courts.  This method also finds support in his 11th Amendment jurisprudence, where he supports the proposition that a state is immune from suit by a citizen of its own state, even though the text of the 11th Amendment is contrary to that “interpretation.”

Equal Protection - With the exception of his view on race-based classifications, Justice Kennedy’s equal protection jurisprudence mirrors that of the “Court.”  In Romer v. Evans , writing for the Court in striking down a Colorado constitutional amendment that would have denied equal protection to homosexuals, Justice Kennedy described his (which is really the Majority approach) equal protection jurisprudence as follows:
The Fourteenth Amendment’s promise that no person shall be denied the equal protection of the laws must co exist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.

Justice Kennedy applies the compelling state interest test to benign race-based classifications.  Thus, in Metro Broacasting, Inc. v. FCC , Justice Kennedy wrote, “I cannot agree with the Court that the Constitution permits the Government to discriminate among its citizens on the basis of race in order to serve interests so trivial as ‘broadcast diversity.’” in his dissent from the Court’s holding that a racist scheme whereby minority owned radio stations would receive addition process before losing a broadcasting license and where minorities were given a head start in obtaining licenses.  However, Justice Kennedy does not per se prohibit benign race-based classifications, as he made clear in City of Richmond v. J.A. Croson Co. , because, “I am confident that, in application, the strict scrutiny standard will operate in a manner generally consistent with the imperative of race neutrality, because it forbids the use even of narrowly drawn racial classifications except as a last resort.”   As such, he wrote for the Court vacating a prosecution where the prosecutor used race-based preemptory challenges.   And in Gratz v. Bollinger,  he voted to strike down Michigan’s program whereby minority applicants were awarded 20 points for no other reason than they were minorities.  He also dissented from the judgment in Grutter v. Bollinger , saying that race could be one of many factors, as J. Powell found in Bakke.