But let’s entertain the possibility that he’s telling the truth. That his version of originalism is simply that judges should “try to understand what the words on the page mean, not import words that come from us,” as he said Wednesday.
And, even more importantly, that “as a judge, my job is to decide cases as they come to me. If I start suggesting that I prefer or dislike this or that precedent, I’m sending a signal—a hint, a promise, a preview about how I’d rule in a future case.”
This is Kennedy’s legal philosophy, not Scalia’s. Since being appointed in 1987, Kennedy has consistently eschewed consistency. He has not enunciated any grand theory of law, save that there is no grand theory of law. (Indeed, the one time Kennedy really swung for the fences, in 2015’s marriage equality case of Obergefell v. U.S., the soaring rhetoric had little to do with the actual holding.) He is a pragmatist who searches for the middle ground, not an ideologue like Scalia (or, at times, Justice Ruth Bader Ginsberg) who stakes out positions well outside of the legal mainstream. He is a fan of balancing tests and case-by-case analysis.
This has often led to frustrating results. In the area of affirmative action, for example, Kennedy has rightly been accused of muddying the waters more than clarifying them. In last year’s surprise decision that race could be factored into college admissions decisions, Kennedy wrote that race could be a factor, but not a primary factor; using it to promote diversity was allowable, but only as a last resort; and that a “holistic consideration” was acceptable, but quotas were not.