Justice Kennedy on Originalism and Bush v. Gore

In advance of the release of his memoir, Life, Law & Liberty, retired Justice Anthony Kennedy sat down with Adam Liptak of the New York Times for an interview.

The book discloses (or perhaps confirms) that Justice Kennedy drafted the Court’s opinion in Bush v. Gore. In the Liptak interview, Kennedy acknowledges the problems with opinions produced under time pressure:

In his book, Justice Kennedy disclosed that Chief Justice William H. Rehnquist had assigned him the majority opinion in Bush v. Gore, the 2000 decision that delivered the presidency to President George W. Bush. It was “a close case” and “a close call,” he wrote, and he concluded that the majority opinion should be unsigned, which it was.

The court issued its decision, by a 5-to-4 vote on the key issue, the day after the case was argued. Justice Kennedy said that sort of quick action, like the court’s recent spate of emergency rulings, was not ideal.

“The court just has to do the best that it can,” he said. “But it does need time.”

Justice Kennedy also offered these comments on originalism:

In the interview, Justice Kennedy said he had reservations about originalism, which seeks to interpret the Constitution as it was originally understood and has become the intellectual core of the conservative legal movement. Originalism is a starting place, the justice said, but it cannot be the whole story.

“The framers were not so self-assured that they thought they knew every component of liberty,” he said. “The meaning of liberty is disclosed over time.”

He acknowledged that his view empowered judges. “So what is it that prevents the court from ruling on every interesting and important and essential political and social issue of our times?” he asked, suggesting that there must be some constraints.

Asked to describe those constraints, he said, “You just have to, in case by case, decide whether or not this is absolutely essential to liberty.”