• Selected
• Entire List

Abstract:
In recent years, several analyses have furthered our understanding of the roles of U.S. Supreme Court clerks. This article applies the insights provided by these works to a case study of some of the language in Justice Kennedy's opinion in Gonzales v. Carhart (2007). The study considers whether both the theory and content of this language were largely the work of one of the crop of clerks who worked for the Justice during the October '06 Term.

Justice Kennedy's vote and his authorship of the majority opinion were unsurprising. However, some of the opinion content was unexpected; its paternalistic approach to abortion rights is inconsistent with the otherwise libertarian arguments that he has employed in previous abortion cases. I hypothesize that this might be explained by the presence, within the quartet of Kennedy's clerks, of an individual who wrote these particular views into the Justice's opinion.

At the end of the day, the name on the opinion in Carhart is Kennedy's. He bears the public burden of shouldering responsibility for the opinion's content. However, recent studies tell us never to underestimate the importance of those who clerk for U.S. Supreme Court Justices. In order to understand Carhart, might we have to accept that it is an example of clerkish control?

This article draws on material from my book: Helen J. Knowles, The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty (Rowman & Littlefield, forthcoming January 2009)

Justice Kennedy, law clerks, U.S. Supreme Court, abortion, jurisprudence, legal theory

Abstract:
The right to privacy is highly cherished, and continues to set the terms for many debates about the Supreme Court's role. I argue that this focus is outdated and misleading because the Court itself has made a conscious effort to move away from the rhetoric of privacy in the decisions upon which this role-based commentary tends to focus.

I trace this evolution in jurisprudential thought from Justice Harlan's separate opinions in Poe v. Ullman (1961) and Griswold v. Connecticut (1965), in which he argues for liberty-based interpretations of the personal decision-making issues; to Bowers v. Hardwick (1986), in which some of the dissenting justices suggested that the Court should resurrect liberty in order to diffuse the criticism that the unenumerated term privacy generated; through Lawrence v. Texas (2003) where the return to the text approach won the support of a majority of the Court. The change between Bowers and Lawrence is explained as a conscious effort by a group of justices, led by Justice Anthony M. Kennedy, to show that, constitutionally speaking, liberty is a right of which privacy is merely a constituent value.

I substantiate my conclusions by drawing on Justice Kennedy's pre- and post-confirmation speeches, and the papers of Justices Marshall, Blackmun and Brennan.

Justice Anthony M. Kennedy, Constitutional Law, Liberty, Privacy, Jurisprudence, Constitution

Abstract:
On January 1, 1808, legislation made it illegal to import slaves into the United States; eighteen days later, in Athol, Massachusetts, Lysander Spooner was born. In terms of their influence on the abolition of slavery, only the first of these events has gained widespread recognition. The importance of Spooner's reading of the U.S. Constitution as a document that did not sanction slavery has been overlooked; his abolitionist work continues to be disparaged as the incoherent ramblings of an unserious polemicist. As this essay demonstrates, this conclusion about Spooner's mid-nineteenth century work, The Unconstitutionality of Slavery, is unfortunate, because his observations about the relationship between law and individual liberty are timeless.

Drawing on his writings (including a previously unpublished manuscript) and voluminous correspondence, with supporting material from abolitionist newspapers and periodicals, I focus on Spooner's contribution to a mid-1840s debate about constitutional interpretation. Spooner's natural-rights based reading of the Constitution's original meaning never matched the popularity of fellow abolitionist Wendell Phillips's emphasis on the Framers' original pro-slavery intentions. Phillips won the day with conclusions that seemed to vindicate the Garrisonian condemnation of the Constitution as a "covenant with death, and an agreement with hell." However, Phillips's conclusions about the law were underpinned by a misleading emphasis on political history. They could not match the fiercely logical, and legal emphasis of Spooner's conclusions. In this respect, only Spooner offered an approach faithful to the Constitution's guarantee to protect the "Blessings of Liberty."

I bring the article to a close with a short twenty-first century postscript that shows the potential for Spooner's unpublished views on the Bill of Rights to play an important role in the debate about whether, in light of the Supreme Court's decision in District of Columbia v. Heller (2008), the Second Amendment to the U.S. Constitution restricts the actions of the state and local governments.

This is a draft of an article, the final version of which is forthcoming in Volume 5 of the NYU Journal of Law & Liberty (2009).

slavery, abolition, originalism, legal theory, legal history, libertarianism, constitutional interpretation, Second Amendment, Bill of Rights, District of Columbia v. Heller

Abstract:
Recent analyses of the First Amendment free speech opinions of the Rehnquist Court have confirmed that decisions in this area of the law contradict the traditional ideological labels that scholars and other Court commentators routinely use to describe the justices. However, Justice Anthony M. Kennedy, whose opinions defined much of the Rehnquist Court's speech jurisprudence, is still described in terms of his First Amendment "libertarianism." In this article, I argue that this approach provides an inadequate understanding of this aspect of the judicial decision-making of the Justice who is now the sole occupant of the "swing" seat on the Roberts Court. Kennedy is a free speech libertarian, but rather than describing his opinions in terms of this ideology, we should focus on the goal of civic education that he uses his judicial opinions to achieve.

Kennedy's interest in civic education became publicly apparent in 2001 when, in collaboration with the American Bar Association, he created the Dialogue on Freedom. The principles of this extra-judicial program are inextricably intertwined with Kennedy's jurisprudence. In the area of expressive freedom, the importance of civic education can be seen in the Justice's opinions in Texas v. Johnson (1989), Rosenberger v. Rector & Visitors of the Uni. of Va. (1995), and Hill v. Colorado (2000). In all three cases Kennedy authored opinions passionately defending the concept of, and educating the public about the importance of maintaining viewpoint diversity.

To substantiate my conclusions I draw on Justice Kennedy's pre- and post-confirmation speeches, and the papers of Justice Blackmun.

Justice Kennedy, First Amendment, Freedom of Speech

Abstract:
Like many other abolitionists, during the 1850's Lysander Spooner (1808-1887) began to infuse the advocacy of violent responses to slavery into his antislavery arguments. However, this Massachusetts native did so by maintaining a decidedly hands-off approach. Instead of oratorical bluster or physical confrontation, Spooner continued to adhere to his lifelong strategy of using written treatises and/or essays of constitutional interpretation and legal logic in order to convey his thoughts. Paying particular attention to his 1858 broadside entitled “A Plan for the Abolition of Slavery (and) to the Non-Slaveholders of the South” (the timing of whose publication John Brown’s supporters considered dangerously inflammatory), this paper asks whether the tendencies towards increased militarism and advocacy of the use of violence changed or weakened the legal bases of the “unconstitutionality of slavery” arguments that Spooner made in the 1840s.

Drawing on Spooner’s works and correspondence, I reach the conclusion that his invitations to violence were just that, invitations. They were, as was the case for so many abolitionists, responses to government actions that had the effect (both perceived and real) of further entrenching Slave Power. They did not in any appreciable manner affect Spooner’s belief that rigid and logical adherence to the rule of natural law and justice could prevail – if only the U.S. Constitution were correctly interpreted.

This is a version of a paper that will be presented at the “John Brown Remembered: 150th Anniversary of the Raid on Harpers Ferry" conference in Harpers Ferry, WV, October 14-17, 2009

slavery, anarchism, originalism, constitutional theory, legal history, abolitionism

Abstract:
To facilitate students' knowledge of constitutional principles, and later to commemorate the Constitution's bicentenary, the U.S. Judicial Conference commissioned Equal Justice Under Law - a set of four period-costume video dramatizations of the most significant Marshall Court decisions. Usually the first Court cases to which constitutional law students are exposed, these cases are neither easy to teach nor conceptually accessible for most students who are just beginning to understand legal reasoning. In this article, I show that the films continue to bring to life events portrayed in legal decisions that students might otherwise dismiss as simply required reading.

In order to reconstruct the decision-making processes for the series, I draw on material from the papers of Judges Edward Dumbauld and Clement Haynsworth. Other conclusions are reached by combining analysis with the teaching notes written by Justice Harry Blackmun, and classroom experience using the material.

U.S. Constitution, Marshall Court, Chief Justice John Marshall, U.S. Judicial Conference, Edward Dumbauld, Harry Blackmun, Clement Haynsworth