June 27, 2018

Justice Kennedy left his mark on American liberty

By James S. Burling Vice President for Litigation

For nearly the entirety of Pacific Legal Foundation’s history, Justice Kennedy has been on the bench. We first appeared before him when he was a judge on the Ninth Circuit and PLF was mostly litigating in California. And then, for the past 30 years, PLF attorneys argued before him many times at the Supreme Court as our presence grew nationwide and we became a significant player in Supreme Court jurisprudence both on our own cases and with our amicus participation. All told, we’ve argued ten cases before Justice Kennedy, winning nine. Throughout his tenure, Justice Kennedy has been unfailingly professional, thoughtful, and deeply concerned about individual liberties—even when he didn’t agree with us.

His biggest mark on regulatory takings jurisprudence was writing the opinions in two of PLF’s cases: Palazzolo v. Rhode Island and Murr v. Wisconsin. The first we won, the second we lost. In Palazzolo, we fought the notion that a new property owner loses the right to challenge the impact of a regulation that existed at the time the owner acquired the property. Kennedy wrote: “This ought not to be the rule. Future generations, too, have a right to challenge unreasonable limitations on the use and value of land.”

But, years later, in Murr, he ruled that a family that owned two separately platted and taxed beach lots could not win a takings claim even though all use was denied on one of the lots. Kennedy agreed with the state that there was no taking because the family still had some use left in the other lot, offering a balancing test that will be the subject of further litigation in the future.

Kennedy also proposed a balancing test in his concurring opinion in Rapanos v. United States. There, we argued that land which was many miles from the nearest navigable waterway could not be considered a “wetland” subject to federal jurisdiction. Justice Scalia, writing for four members of the Court, agreed with us, ruling that without a more direct surface connection between our client’s land and a navigable water, the land could not be subject to federal control.

Justice Kennedy wrote a concurring opinion that was the one vote we needed to reverse the government’s order. But he didn’t join Justice Scalia’s test; instead, he proposed a new test that requires there to be a “significant nexus” between the land in question and a waterway—looking in particular at “chemical, physical, and biological integrity of other covered waters.” Since that decision, litigants and courts have had trouble figuring out exact contours of the test. As Justice Kennedy himself later said at oral argument in another one of our cases, U.S. Army Corps of Engineers v. Hawkes, the standard for determining what is a wetlands under federal control may be “unconstitutionally vague, ” and that is the subject of the present-day controversy over the “waters of the United States” or WOTUS rule.

Justice Kennedy’s legacy, of course, is much larger than PLF’s cases where he agreed with us sometimes and sometimes not. Kennedy joined with the majority in upholding the condemnation of private homes for private development in Kelo v. City of New London. While the homes were taken and bulldozed, to this day all that remains are empty vacant lots. He ruled that same-sex couples are entitled to the same right to intimacy and marriage as any other couple in Lawrence v. Texas and Obergefell v. Hodges. These opinions, with their display of Kennedy’s creative rhetorical powers, were and remain controversial.

To his credit, however, Justice Kennedy always expressed deep distrust of the procedural rules that for years have prevented property owners from litigating takings cases in federal court. We had hoped to have him on the Court for our upcoming argument in Knick v. Scott Township, where we are challenging the very rules that Kennedy questioned. But we know we’ll have plenty of opportunities to argue before his successor.

Most of all, Justice Kennedy’s defense of First Amendment freedoms is legendary. He wrote the majority opinion in Citizens United v. Federal Election Commission, where he upheld the right of corporate entities to spend money on politics. But his earlier concurrence in Texas v. Johnson in support of the First Amendment right to burn a flag perhaps is the best summation of his jurisprudence, especially when it was contentious. He wrote, “The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.”

For all his time on the bench Justice Kennedy never ruled to curry praise but always to follow his conscience.

What to read next