Justice Denied

Especially now that O'Connor's gone, Anthony Kennedy is the most frustrating Justice of all--right or wrong, he invariably selects the worst rationale, as Matthew Franck observed on National Review's Bench Memos yesterday:

Nonetheless, the anti-war bar and Justice Stevens have combined to leverage Justice Kennedy into accepting a meritless case [reviewing the Military Commissions Act of 2006] for the Supreme Court's docket in the next term. This event is of a piece with the pattern that emerged in the recently concluded term, a period when Kennedy's long-running performance of Hamlet reached a kind of climax, with Kennedy the only justice in the majority of every 5-4 decision. Even in the cases in which the outcome was correct, Kennedy almost invariably rendered the reasoning—whether his own or that of the justice writing for the majority that included him—less coherent than it could and should have been. The damage to the clarity that the rule of law requires has been fairly serious as a result.

In that article yesterday, Greenhouse relies on Barry Friedman of NYU law school for an explanation of Kennedy's decision-making. Friedman calls him (in Greenhouse's paraphrase) "more of an idealist than a pragmatist." This gives idealism a bad name. It would be more accurate to call Kennedy an impulsive sentimentalist. His prose style betrays (what passes for) his thinking, vibrating between the poles of maudlin hand-wringing and sanctimonious arrogance, but unusually vacant when it comes to reasoning about legal principles.