How not to write a judicial opinion

If cleanliness is next to godliness, clarity is the next best thing when it comes to the Supreme Court. Clearly written Supreme Court opinions confer certainty, uniformity, and legitimacy on decisions throughout the American legal system. By providing easy-to-follow opinions for lower courts, Supreme Court justices leave less room for arbitrary judgments, thereby ensuring that our system remains one of laws, not men.

If only someone could remind Justice Anthony Kennedy. Instead of writing crisp opinions, Justice Kennedy often pollutes what should be the clear waters of American jurisprudence. The ultimate results — uncertainty, split federal circuits, and room for arbitrary judicial decisions — are unhealthy for the American legal system. But don’t blame Kennedy alone. His tendency toward loose opinions is more than a mere individual judicial flaw. It’s an inevitable characteristic of Kennedy’s liberal judicial philosophy.

In constitutional cases, Kennedy has long been detested by conservatives for his tendency to, as Slate’s Dahlia Lithwick has explained, “think grandly and write sweepingly.” Dr. James Dobson went so far as to call him the “most dangerous man in America” for his reliance on international opinion in the juvenile death penalty case of Roper v. Simmons. In comparison, relatively little attention has been paid to the clarity of his opinions, a judicial trait that affects the Court’s cases on mere statutory construction as well as those on the Constitution. Yet regardless of one’s particular juridical persuasion, Kennedy’s clarity, or, more accurately, his lack thereof, leaves much to be desired.

The latest evidence of Kennedy’s mealy mouth is the Court’s opinion in Rapanos v. Army Corps of Engineers. The case, released last month, presented a simple question for the Court: whether the term “navigable waters” in the Clean Water Act could be held to mean wetlands that are not, in fact, navigable.

The Court’s battle lines were not surprising. The four conservative justices argued that words have meaning, and as such, chose to limit the Clean Water Act to the actual words used in the statute. The four liberal justices voted for a more expansive definition. Kennedy fell in with the conservatives — well, sort of. Rather than join their well-reasoned opinion, he wrote his own narrow version. As a result, his solitary construction is now controlling law.

But no one is quite sure what his opinion actually means. Its reads more like Alan Greenspan than Oliver Wendell Holmes. And just as a Greenspan speech has oft been followed by multiple contradictory headlines, so too was Kennedy’s concurrence. “Supreme Court Reins in Clean Water Act,” claimed the Washington Post. “Justices Divided on Protections for Wetlands,” said the New York Times. “Court Affirms Wetlands Protection,” countered the Tracy Press, a suburban San Francisco paper which, despite its size, might have been the only one of these three to get it right.

Legal scholars aren’t quite as confused as to the short-term result. Kennedy’s opinion provides the government with a legal do-over. Though he said the theoretical scope of the Clean Water Act is not as wide as the federal government claims, he also refused to rule out the possibility that the current scope is too broad. Instead, he echoed an earlier Supreme Court case, declaring that the federal government must prove a “significant nexus” between the wetlands it wants to regulate and “navigable waterways in the traditional sense.”

Of course, Kennedy stopped short of revealing what a “significant nexus” actually is. He wrote that one could be proven by showing that the land in question “significantly affect(s) the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.'” In footnote 15, he even hinted at the “possible existence” of evidence of a significant nexus in the Rapanos case itself, if only that evidence had been presented in a manner “according to the principles” Kennedy outlined in the opinion. Even still, Kennedy stopped short of explaining just how much affect would be necessary to convert a common-sensically un-navigable patch of water into a statutorily navigable waterway.

It is now an issue for the lower courts and the Army Corps of Engineers to hash out — probably on a case-to-case basis, admits Kennedy. Pity the lower court judges faced with complex case-by-case analyses of scientific evidence that they are typically unprepared to adequately decipher. Pity the landowners and prospective purchasers who face unpredictable legal outcomes, and are forced to roll the dice on whether the occasional puddle or intermittently wet ditch on their property will prevent them from fully developing their land. Heck, pity the environmentalists who might think they actually lost this case, and who will join landowners in uncertainty. But don’t pity the lawyers. They’re the only winners in this case — for as the law grows more complex, the demand for lawyers always keeps pace.

The sloppy opinions might not be such a problem if Justice Kennedy were a Supreme Court wallflower. Some slop here, a little over there, no big deal. But in fact, after the retirement of Sandra Day O’Connor, Justice Kennedy is the Court’s most important justice. He holds the swing-vote on a wide-variety of issues. As a result, he could be writing an inordinate number of important decisions in coming years. In other words, the slop will be everywhere. And, as David Boaz of the Cato Institute recently explained in “Kennedy is King,” the explosion of vaguely-written and wide-reaching laws and regulations has made the swing-vote position on the modern Supreme Court akin to modern monarchy. Kennedy now sits in the throne.

The larger point is not that Kennedy is a horrendous Supreme Court justice, or that constitutional jurisprudence will be so muddied during his reign that it will become largely unintelligible to the unwashed masses. These are important, but they are narrowly focused. Rather, the larger point is that Kennedy’s lack of clarity is a product of a liberal judicial philosophy that strips meaning from ordinary words and compels what would be never-ending searches for deeper meaning in otherwise simple constitutional or statutory language were it not for the inevitable convergence of a plausible interpretation with the preferred liberal policy.

In common parlance, this is known as judicial activism. And while the Court’s conservatives have been guilty on occasion, the liberals are serial offenders. In some cases, the search for deeper meaning quite literally leaves words without meaning. In this case, that would have been the result of the liberal justice’s opinion, which Kennedy argued, “reads a central requirement out – namely the requirement that the word ‘navigable’ in ‘navigable waters’ be given some importance.”

In the absence of firm meaning, liberal justices often hold that a legal term means whatever government regulators want it to mean. Again, this was the case here. It was also the case in the infamous Kelo decision, where, by deftly replacing the actual constitutional requirement of “public use” with “public purpose,” the Court gave local governments carte blanche to seize private property so long as those governments whispered the magic words “public purpose.”

In other cases, however, the Court’s liberals must look far beyond the actual text at issue and the government interpretation of that text. Abortion jurisprudence is the most notable area in which this is the case. It is there that liberal judicial philosophy conveniently discovered a “right to privacy” implicit in the Fourteenth Amendment despite nearly two centuries of constitutional interpretation to the contrary.

Or consider Kennedy’s majority decision in Lawrence v. Texas, the Texas sodomy case from 2004. “Freedom extends beyond spatial bounds,” Kennedy wrote. ” 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.”

And with that, Kennedy opened the doors wide. As one commentator explained at the time:

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 incarceration, 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.

Regardless of the relative beneficence of the immediate result of the case — i.e. the fact that anti-sodomy laws are no longer permissible — Kennedy’s language altered the balance of power between legislatures and judges. How are legislatures to determine the permissible outer bounds of government power if constitutional claims must no longer be tied to concrete interests? Kennedy’s likely answer: they’re not. That’s what the Supreme Court is there for.

The relationship between the larger philosophy and loose language is symbiotic. Interpret the Constitution or federal statutes loosely, and be sure to leave room for future “improvements.” The philosophy requires abstract thought un-tethered to the actual constitutional or statutory language in question.

And that’s not just an originalist’s way of looking at things. Consider the words of Justice Breyer himself in “Active Liberty,” his short manifesto on judicial interpretation:

The judge, whether applying statute or Constitution, should ‘reconstruct the past solution imaginatively in its setting and project the purposes which inspired it upon the concrete occasions which arise for their decision.’ . . . Judges, in applying a text in light of its purpose, should look to consequences, including ‘contemporary conditions, social, industrial, and political, of the community to be affected.’ And since ‘the purpose of construction is the ascertainment of meaning, nothing that is logically relevant should be excluded.’

Thus, in Breyer’s world (and Kennedy’s too), judicial decisions require imagination, and nothing is out of bounds. Loose opinions, imaginative and unbound, are the result of that abstract thought, and the catalyst of future abstract thought.

Ultimately, for judicial liberals, loose language and complicated balancing tests are commendable. The looser the language, the more room for later judicial amendment by judges who will be better able to tell how a particular constitutional provision or federal statute should be applied in that future time period, as opposed to how the people who actually ratified the Constitutional provision or statute in question actually thought they meant. In other words, loose opinions leave room for the imagination of future justices. What they also do is remove the law-making power from the present to an indeterminate future when a future justice finds the imagination necessary to change the plain meaning of constitutional or statutory language and crown themselves king of a future Supreme Court.

Jason Barnes is a freelance writer, and the editor of www.beltwayblitz.com in Arlington, Virginia.