On April 21, 2016, senior Ashbrook Scholars A.J. Thomas and Ivan Larson held a debate on Supreme Court Justices Kennedy and Scalia and how their judicial philosophies differ. Several students as well as a few faculty members were in attendance.
Thomas started the discussion by explaining Justice Kennedy’s judicial philosophy. He mentioned that Kennedy believes “The job of the court is to defend the liberty of all. Kennedy uses his interpretation of the law and the Constitution to make decisions and to define the law as required of being the highest judges of the land, therefore creating a higher ideal.”
Thomas backed up his argument by citing cases such as the Maryland v. King, a case that was brought before the Supreme Court in 2013 dealing with questions of individual freedom and privacy. The case dealt with a man, Alonzo King, Jr., who was arrested and charged with 1st and 2nd degree assault. While incarcerated, King had a cheek swab taken, which fell under the expansion of Maryland’s DNA law and database of taking DNA from those charged with 1st, 2nd, and 3rd degree burglary or violence, or any attempts of those crimes. After taking the swab, King’s DNA matched an unsolved rape case from 2003. King argued that this DNA collection was an infringement of his Fourth Amendment right against improper search and seizure.
Kennedy wrote the majority opinion in this case favoring Maryland, writing, “‘[T]he Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” (Schmerber, supra, at 768) “As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is ‘reasonableness.’ Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 652 (1995).’” Thomas concluded by stating that “Kennedy believes that the Constitution may not only have the original meaning of its words, but also can encompass issues of today, thereby stretching the Amendments to encompass new issues.”
Larson then brought forth Justice Scalia’s philosophy which differs from Justice Kennedy’s. He explained that Scalia’s political philosophy is one of textualism and originalism. It is a philosophy that is “derived from looking at the text of the Constitution, and seeing what those words mean for each specific case.” Scalia sees the Constitution as a contract out of the Lockian tradition, meaning that the words should be seen as what they were meant at the time of being written.
The discussion then lead to property rights, with Thomas and Larson citing cases such as Kelo vs. City of New London, where the question of eminent domain, the right of a government or its agent to take private property for the public use, was called into question. The case was whether or not the city of New London could take Susette Kelo’s house and demolish it in order to bring about economic growth from a private development, and whether or not this constituted public use under the Takings Clause of the Fifth Amendment. The Court ruled in favor of the city, interpreting “public use” to broadly mean “public purpose.”
Scalia joined the dissenting opinion written by Justice Sandra Day O’Connor, stating that there should be a “heightened” standard of judicial review imposed for takings justified as being part of economic development. Kennedy wrote the concurring opinion, adding that even if a taking should pass a “heightened” standard of review that a taking should not be considered part of the public use if the intent is to clearly “favor a particular private party, with only incidental or pretextual public benefits.” For those worrying about the outcome of the case, though many houses including Mrs. Kelo’s were raised and moved to a different areas, the development plan never came to fruition. The case, which seemingly caused a public defeat for property rights, had an 80% public disapproval rating.
The discussion concluded with Thomas and Larson stating that though the two justices do agree on many things, there is a difference between the two. Scalia is an originalist that lets the law speak for itself, letting the law govern judges. Kennedy relies on his own interpretation of the law as well as the Constitution to guide his decisions, and he sees defining the law as a primary duty of those who serve on the highest court in the land.