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June 22, 2012

Douglas W. Kmiec, U. S. Ambassador (ret.), a legal scholar, and the Caruso Family Chair in Constitutional Law & Human Rights at Pepperdine University in Malibu, California, sent us this guest blog today.

Empathy Applied-- Why President Obama will win the health care case

Those predicting defeat for the President’s health care reform have pointed to  Justice Kennedy’s surprising skepticism at oral argument of the scope of the commerce power to mandate a private citizen to buy insurance.  After all, generations of lawyers have witnessed multi-million dollar hospital and other needed private and public works halted for neglecting mandates to escort even tiny, sometimes microscopic, critters or rare vegetation to other locales. There is scarcely a law student who has not left law school familiar with the plight of Farmer Filburn, who with the capacity to grow and feed his own livestock and family, is effectively mandated to buy those products in the market or be fined.

Justice Kennedy is a literate, level-headed, fair-minded man.  His appointment as the replacement for the rejected nomination of Robert Bork represented Ronald Reagan’s conservative version of President Obama’s more overt embrace of empathy as a necessary quality for judicial service on the high court.  Kennedy is sometimes mocked for his Hamlet-like ambivalence, but a close examination of his personality still reflects the sense of regard for the needs of others that resided in the young Tony Kennedy who assumed the obligations of his ill father’s small northern California practice, putting on hold much larger dreams his Stanford education easily opened to him. 

Yet, it cannot be denied that  Justice Kennedy in the rough and tumble of the oral argument thought a line crossed to mandate even as that line is left unreached when the government regulates with mandates only, but only after a person first undertakes construction or farming or thousands of other economic undertakings. 

What has gone unnoticed is that by day 3 of the argument, it was beginning to dawn on both Justice Kennedy and the Chief Justice that the fine distinction argued for is highly formal if not entirely fatuous (notwithstanding the judicial distaste for broccoli), and it is likely to be a quite perplexing path.  Parts of the law would continue, other parts would not. Knowing which requires study which Justice Scalia likened to “cruel and unusual punishment” to ask judges (him) to figure out.  Suddenly, Kennedy was being thrust wholesale into the statute re-writing business, and he was visibly alarmed at the prospect.

The conservative challengers were delighted, thinking this meant Kennedy would sweep away the entire statute, but their celebratory destruction of the health care improvements for those of modest wage or less failed then to see that Kennedy’s fifth vote angst necessitated that the Chief Justice work overtime to calm matters even as advocate Michael Carvin chose to give a Federalist Society stem-winder that by overstatement merited Roberts repeated correction.  Roberts did not want to lose the majority.  In fact, there is good r3eason to believe he had already lost Kennedy.

Why?  Three reasons.  Kennedy’s middle of the road legacy is rightly important to him.  Whenever the initial blandishments of  his right-sided friends has pushed him to the edge, he has stepped back: this is true in everything from the abortion cases to Bush v. Gore, to the interpretation of the clean water act, the compensation for over-regulation of land, and his willingness to re-examine federal habeas rights for detainees—even after first seeming to close the door. 

Second, Kennedy’s ambivalence is an aspect of intelligence that refuses to be ideologically caged.  It was that when we reviewed his lower court opinions for President Reagan, and it is now.

But I have a third reason.  It is that Kennedy is a life-long student as most successful people are, and he treasures the education from his beloved undergraduate alma mater, Stanford.  Harvard may have awarded his law degree, but like the late Chief Justice Rehnquist and Justice O’Connor, Kennedy found the personal attention at Stanford to be his formation.  All three relished politics.  At “the farm,” as Stanford is known, Rehnquist at age 24 authored a philosophical theory of rights-based jurisprudence in the politics department that clearly shaped his judicial opinion writing till the end.

Justice Kennedy was likewise deeply influenced by study with some of the same political scientists.  Both young men were acolytes of Arthur B. Leavelle.  Kennedy greatly enjoys recounting stories of this great teacher of politics and law.  Leavelle was devoted to understanding James Wilson, an often overlooked founder whose appreciation for the workability of government can be seen in Kennedy’s highly contextual and textured rulings for which he is noted.  These rulings are responsible for rooting out bias against homosexuals as well as manifesting sensitivity to the psychological pressures of school prayers on those who believe differently.  Kennedy is detested by the rigid originalists for these – oh, let’s say, empathetic qualities -- but they are his hallmark and it is incredible to think he will abandon them now.

And my library research of Leavelle, whose PhD was granted by UCLA in 1940, reveals yet one more reason to think the President’s health care reform will be left standing victorious next week. Leavelle was a defender of national power whenever that power was needed to rectify the limits of state or market capability. There is no better summary of the President’s reform than that it is directed at longstanding market failure, and a market that has failed those who Kennedy’s father – “Anthony J.” -- often represented with the political figures of the day without a wit of concern for the billable hour. 

The opponents of the health care law do not represent the thinking of Justice Kennedy, save in one respect: Kennedy’s jurisprudence is deeply respectful of individual freedom.  For this reason, the opposition was strategically savvy to choose the word “coercion” to describe the mandate.  Of course, the word rather disingenuously hides  that it is not the government doing the coercing, it is the  fact that our human nature is subject to inescapable illness and injury. Just as sure as Aesop’s lackadaisical grasshopper will need to rely on the provisions of the hard-working ant, deliberately not securing insurance made reasonably available is to deny the inevitable.

Indeed, there is only one problem in trying to undo the improved well-being of 32 million uninsured with the clever “c” word, and it is that it overlooks both the careful instruction of the founder James Wilson as well as his noted biographer Leavelle, who wrote: what the new Constitution does over the failed charters that preceded it is both the surety “of national power to act where individual states were incompetent, . . . and to “act directly to coerce individuals.”

Justice Kennedy understands something the health care opponents do not; and that is, freedom is not lost by being mindful of the needs of others, it is enhanced. 

Comments are automatically closed two weeks after an article's initial publication. See our comments policy for more.
John Barbieri
10 years 11 months ago
This well meaning but silly article is based on trying to read the minds of the supreme court justices. I have no idea about what they will decide. The professor doesn't either.
Michael Caputi
10 years 11 months ago
Might we now get a concluding statement from Ambassador Kmiec?
JR Cosgrove
10 years 11 months ago
This is an unusual article.  Why post it now unless Mr. Kmiec knows something that others do not.  If he is wrong, then he will look sort of silly and if he is right, then it looks like he received some leaked information and wants to look prescient.  It is one thing to discuss the pros and cons of the law, which should have been done months ago, but to do so right now a few days before the actual decision...? 

As I said the timing of the post is very strange.
Bill Collier
10 years 11 months ago
Just change "Justice Kennedy" to "Chief Justice Roberts" and no harm, no foul in the Ambassador's post.

Actually, CJ Roberts is something of a surprise to me. I haven't read all of the opinions yet, but IMO his majority opinion is something of a stature-making moment for him. He'll be pilloried in some circles, yet he's helped to reduce to some degree the perception that the Court is divided on political lines. Still, CJ Roberts is no dummy. By pinning the legality of the individual mandate to the government's taxing power, and not as an acceptable exercise of the the ever-increasing (perhaps until now) use of the Commerce Clause, Roberts may have put the brakes on expansion of the Commerce Clause. Time will tell, and perhaps Roberts was thinking long term impact when he sided with the so-called liberal bloc on the Court.   
Rick Fueyo
10 years 11 months ago
Mr. Kniec has more faith in the integrity of the justices than is merited.  notwithetsnding the logical incoherence of the legal case against the bill, certain of the justices are more partisan poltical actors than jurists.
Joshua DeCuir
10 years 11 months ago
Amb. Kmiec should send this elegant memo re: Kennedy's intellectual and jurisprudential empathy to the man he once worked for.  After all, Justice Kennedy was the author of Citizens United, and I don't hear the President waxing too poetic about that decision.  Indeed, Justice Kennedy was the justice who pushed the court further to the right on the issue, writing an opinion on constitutional grounds and arguing over would-be partisan CJ Roberts who had penned a majority opinion on narrower grounds.
Tom Maher
10 years 11 months ago
Justice Kennedy had highly critical comments during the Supreme Court oral argument s on the constitutionality of the individual mandate requiring everyone to purchase health insurance. Justice Kennedy's comments do not support the individual mandate at all. Justice Kennedy said the following:

"But the reason , the reason this is concerning , is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don't have the duty to rescue someone if the person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule.
And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way."

Justice Kennedy was extremely critical of the constitutionality of individual mandate requiring the purchase of health care insurance. The "c" that Kennedy has trouble with going beyond coercion is constitutionality. To understand what is really happening with Justice Kennedy one must not forget that the Constitution is the law.

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