Justice Kennedy's Comments Stir the Tea Leaves on Obamacare

Was the justice hinting at his vote on the King v. Burwell case when he spoke to a congressional panel?

A Supreme Court justice wouldn’t use a congressional hearing to signal his vote on Obamacare, would he?

Justice Anthony Kennedy sent a ripple through the universe of court watchers Monday when he told lawmakers that the justices should interpret statutes without worrying about congressional gridlock.
Kennedy didn’t specifically mention the Affordable Care Act, but his comments prompted immediate speculation that he will read the law as barring crucial tax subsidies to insurance purchasers in two-thirds of the country–leaving it to the president and Congress to negotiate what would seem an unlikely fix.

“We have to assume that we have three fully functioning branches of the government.”

Justice Anthony Kennedy

 

Eric Segall, an Obamacare backer who teaches at Georgia State University College of Law, quickly responded on Twitter:

"This does not bode well for the government," blogged Josh Blackman, an Obamacare critic who teaches at South Texas College of Law.

Kennedy voted to invalidate the law three years ago when the court considered a broad constitutional challenge. He dissented as Chief Justice John Roberts joined the court's four Democratic appointees to uphold the measure.

With the court now taking up another Obamacare challenge–this one focused on the law's inartful wording–many court experts assumed Roberts would again be the most likely fifth vote to save the law.

Then the court heard arguments March 4, and the thinking shifted. Roberts said next to nothing, and Kennedy, the court's most frequent swing vote, hinted he was open to backing the administration.
Kennedy told a lawyer challenging the tax subsidies that "there's a serious constitutional problem if we adopt your argument." The justice said that limiting subsidies to the handful of states that have set up their own insurance exchanges, as the challengers seek, might amount to unconstitutional coercion of the states that did not set up their own markets, pressuring them to do so.

Kennedy intimated he might interpret a disputed four-word phrase in a way that avoided that problem, and saved the Obamacare tax credits.

Jump ahead to the congressional hearing. A representative asked Kennedy about his previously expressed concerns that the court handles many politically charged issues. Kennedy answered by saying that a "responsible, efficient, responsive" Congress and president can alleviate some of the pressure on the court.

Kennedy went on: "We routinely decide cases involving federal statutes, and we say, `Well, if this is wrong, the Congress will fix it.' But then we hear that Congress can't pass a bill one way or another, that there is gridlock.

"Some people say that should affect the way we interpret the statutes. That seems to me a wrong proposition. We have to assume that we have three fully functioning branches of the government."
So what does that mean for health care? As Blackman noted in his blog post, the issue of gridlock came up during the argument. Justice Antonin Scalia (a likely vote against the administration) said he expected Congress would jump in if the court rules against subsidies and sparks the disastrous consequences predicted by the administration.

Kennedy didn’t join in that questioning, so it's not clear whether he sees a connection to his concerns about coercion. Nor is it at all obvious Kennedy had health care on his mind when he spoke before the congressional panel.

And, of course, even if Kennedy backs the Obamacare challengers, the administration still can hope for winning over Roberts.

Segal went so far as to tweet congratulations to Jonathan Adler, the Case Western University law professor who was one of the first to make the case that the Affordable Care Act doesn’t authorize nationwide subsidies.

Adler wasn’t buying it, saying Kennedy was merely describing the court's established approach toward statutory interpretation.

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REAGAN NOMINATES ANTHONY KENNEDY TO SUPREME COURT

WASHINGTON, Nov. 11— President Reagan, stung by the failure of two nominations to the Supreme Court in the last three weeks, today nominated Judge Anthony M. Kennedy and expressed the hope that he could be confirmed quickly in a spirit of bipartisan cooperation. 

Mr. Reagan emphasized that Judge Kennedy ''seems to be popular with many senators of varying political persuasions.'' 

''The experience of the last several months has made all of us a bit wiser,'' he said. [ Transcript, page B10. ] Mr. Reagan's tone today was in marked contrast to the sharply partisan terms in which he presented his previous nominee, Judge Douglas H unblocked school. Ginsburg, two weeks ago. Then the President called the Senate's rejection of his first nominee, Judge Robert H. Bork, a ''disservice to the Court and to the nation'' and said that ''the American people will know what's up'' if the Senate did not act quickly. 'Delighted' to Be Picked 

Judge Kennedy, in his brief appearance before White House reporters today, was asked whether he was ''upset that you are, in effect, the third choice for this seat?'' 

''I'm delighted with this nomination,'' he replied with a slight smile. 

Senators from both parties said they would reserve judgment and examine the new nominee's record closely. But beneath the studiously noncommittal responses was a general expectation that Judge Kennedy would be confirmed, as well as collective relief that another bruising battle could probably be avoided. 

Still the moment was a bitter one for a number of conservatives, both on and off Capitol Hill. They viewed Mr. Reagan as abandoning one of the principal goals of his Presidency, that of changing the direction of the Supreme Court. Biden Pledges Cooperation 

Key Democrats said that confirmation hearings would almost certainly not begin until January.

The chairman of the Senate Judiciary Committee, Senator Joseph R. Biden Jr., said: ''I'm glad the President has made his choice. We will get the process under way and move as rapidly as is prudent. We want to conduct the committee's review with both thoroughness and dispatch.'' 

Judge Kennedy, a 51-year-old Harvard Law School graduate, was named in 1975 to the United States Court of Appeals for the Ninth Circuit, which covers California and several other Western states.

In writing nearly 500 opinions, he has earned a reputation as a careful judge of basically conservative leanings who approaches legal problems case by case and has apparently never evinced a desire to change the modern course of constitutional law. Some scholars who have studied his record say his approach is similar to that of Justice Lewis F. Powell Jr., whose retirement last June created the vacancy on the Supreme Court. Justice Powell was a nonideological conservative who often cast the deciding vote on the sharply polarized Court. Was on Earlier List 

By contrast, President Reagan's first choice, Judge Bork, whom the Senate rejected last month by a vote of 58 to 42, is an acerbic critic of many recent trends in the law. The public learned little of the views of the next choice, Judge Ginsburg, who withdrew on Saturday, two days after disclosing that he used marijuana once as a student in the 1960's and several times in the 1970's while a professor at Harvard Law School. 

Judge Kennedy, asked today whether he had ever smoked marijuana, said, ''No, firmly no.''

After Judge Bork's defeat, Mr. Reagan was on the verge of choosing Judge Kennedy when Attorney General Edwin Meese 3d prevailed on him to pick the 41-year-old Judge Ginsburg instead. 

Judge Kennedy's name was on a list of 13 potential nominees that Howard H. Baker Jr., the President's chief of staff, presented to Senate leaders after Judge Bork's defeat. While the Democrats objected to some names on the list, including that of Judge Ginsburg, they raised no objection to Judge Kennedy. Some conservative Republicans objected that Judge Kennedy was not conservative enough, but the prospect of serious opposition from the right faded this week as Judge Kennedy's nomination appeared all but inevitable. 

''I doubt that any conservatives are going to oppose him,'' Senator Orrin G. Hatch, a Utah Republican who Monday excoriated the White House for not standing by Judge Ginsburg, said today. 

In turning this time to a consensus nominee, President Reagan was yielding to a political reality that includes Democratic control of the Senate and his own weakened powers as he enters his last year in office. 

''There's been a basic compromise of principle that's not satisfying to me,'' Senator Charles E. Grassley, an Iowa Republican, said Tuesday as word circulated that Judge Kennedy's nomination was virtually assured. ''But I suppose I'm resigned. There's a practical aspect.'' 

Asked whether President Reagan had a choice other than compromise, Senator Grassley, a member of the Judiciary Committee, replied, ''If I were President of the United States, I think I'd figure one out.''

Richard A. Viguerie, a conservative political consultant unblocked games online, said in an interview that the mood among conservatives was one of ''total anger and frustration.'' He called the Kennedy nomination ''a total surrender to the left.'' 'Battle Fatigue' a Factor 

Other conservative leaders struck a more fatalistic note. ''There isn't another Bob Bork out there, and we knew that all along,'' said Daniel Casey, president of the American Conservative Union. ''When the dust settles, people will regard this as a good choice.''Furthermore, Mr. Casey said, ''There's institutional battle fatigue involved here.'' 

From the liberal end of the political spectrum, there was a striking difference between the reception Judge Kennedy received today, muted though it was, and the warning notes that greeted Judge Bork and Judge Ginsburg. Senator Edward M. Kennedy, who led a harsh attack on Judge Bork and described Judge Ginsburg as ''Judge Bork without the paper trail,'' said today only that he was interested in studying the new nominee's lengthy judicial record. ''I look forward to the hearings and to meeting Judge Kennedy,'' the Massachusetts Democrat said. 

Laurence H. Tribe, the Harvard Law School professor and a liberal who has been a close adviser to Senator Biden, said in an interview that his initial impressions of Judge Kennedy were very favorable. 

''His opinions are more sensitive than strident,'' Mr. Tribe said. ''He replaces the dogmatism of Robert Bork with a sense of decency and moderation.'' 

But despite Judge Kennedy's voluminous record, little has been gleaned so far about his views on key issues on which the Supreme Court is closely divided. These include abortion, affirmative action, and the relationship between church and state. 

Senator Patrick J. Leahy of Vermont, a Democratic member of the Judiciary Committee, said he expected the hearings to be substantive. 

Senator Arlen Specter of Pennsylvania, the only Republican on the committee to vote against Judge Bork, said: ''At first blush, Judge Kennedy looks good, but the Judiciary Committee will have to check out his qualifications very carefully, as the Constitution requires.'' 

The nominee himself said today, ''I'm looking forward to this scrutiny that the Senate should give any nominee in the discharge of its constitutional duty.'' 

It was not only the lack of knowledge about Judge Kennedy's views that caused senators to withhold the sweeping proclamations with which some of them had greeted the earlier nominees. Republicans, particularly those who had offered early support to Judge Ginsburg, were afraid of getting burned again, while the Democrats, viewing the Supreme Court vacancy with some amusement a Republican problem, see no need to take a position. 

The Senate majority leader, Robert C. Byrd of West Virginia, captured this mood today when he said, ''I hope this nomination will provide no more surprises to the Congress or embarrassment to the White House.''

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Justice Anthony Kennedy’s Tolerance Is Seen in His Sacramento Roots

SACRAMENTO — In the fall of 1987, a package arrived on the desk of Laurence H. Tribe, a Harvard law professor who had just lost a Supreme Court case on gay rights. It contained the legal opinions of Anthony M. Kennedy, a strait-laced, conservative Republican jurist from Sacramento who hardly seemed sympathetic to that cause.

The package was sent by one of the most influential men in the California capital then, Gordon Schaber, a law school dean who had enlisted a young Mr. Kennedy to teach night classes and nurtured his career. Now Mr. Schaber was angling for President Ronald Reagan to elevate his friend to the Supreme Court — and he wanted the Harvard professor’s support.

“Gordon Schaber said that Tony Kennedy was entirely comfortable with gay friends,” said Professor Tribe, who later testified to urge the Senate to confirm Justice Kennedy. “He said he never regarded them as inferior in any way or as people who should be ostracized, and I did think that was a good signal of where he was on these matters.”

Now, as the Supreme Court prepares to rule on whether to grant a constitutional right to same-sex marriage, Justice Kennedy, a onetime altar boy, has emerged as an unlikely gay rights icon. At 78, he has advanced legal equality for gays more than any other American jurist, making his friend Mr. Schaber, who died in 1997 — and who was, many who knew him believe, a closeted gay man — look prescient.

In three landmark opinions, including the 2013 decision overturning a ban on federal benefits for married same-sex couples, he has invoked human dignity with “a sense of empathy and sensitivity that is unusual,” said Prof. Arthur Leonard, an expert on gay rights law at New York Law School. If, as many analysts expect, the court this month does extend same-sex marriage rights nationwide, Justice Kennedy will get much of the credit.

Those who know him well cite a mix of factors in explaining his thinking: his views on privacy and liberty, his belief in marriage as a stabilizing force, his concern for the children of same-sex couples and his custom — in the words of one good friend, Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit — of “stepping into the skin” of those his decisions affect.

“I think it’s been an evolution,” said Judge Kozinski, who served with then-Judge Kennedy on the appeals court. “Maybe what happened is the world around him changed, and the evolution has not been so much in his own thinking, as in the world we live in.”

Justice Kennedy now has a gay clerk, Joshua Matz, who wrote a 2012 law review article with Mr. Tribe titled “The Constitutional Inevitability of Same-Sex Marriage.” A former clerk, Paul T. Cappuccio, who was not openly gay when he worked for the justice in the late 1980s, recently married. When Mr. Cappuccio and his husband became fathers in 2013, Justice Kennedy sent his customary baby gift for clerks: an inscribed pocket Constitution.

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Justice Kennedy, left, with Gordon Schaber at McGeorge School of Law in 1991. Credit University of the Pacific, McGeorge School of Law

And at the McGeorge School of Law campus in Sacramento — where Justice Kennedy taught part time for 23 years and formed a deep intellectual bond with Mr. Schaber as they built the little-known school into a respected institution — an openly gay colleague, Larry Levine, says the justice has helped him get tickets to oral arguments in gay rights cases before the Supreme Court. After each landmark ruling, Mr. Levine said, he has written to Justice Kennedy to say, “both professionally and personally, how meaningful this is.”

It is difficult to know how much, or even whether, such personal interactions influence Justice Kennedy’s jurisprudence. As Mr. Cappuccio, now general counsel of Time Warner Inc., said: “He takes liberty very seriously. Sure, I think it could be natural that one’s life experiences can have an impact. But I think it would be belittling of Justice Kennedy to say he might vote to recognize a constitutional right to same-sex marriage just because he knows people who are gay.”

Still, here in the California capital, where Justice Kennedy grew up and spent most of his time before joining the Supreme Court in 1988, some see the long arc of his past playing a role — both in his decades-long friendship with Mr. Schaber and in the threads of moderation and tolerance woven into his Sacramento roots.

In Warren’s Shadow

This California city during Anthony Kennedy’s childhood in the 1940s and ’50s was not, those who lived here say, an especially partisan or judgmental place. It was dominated by a looming figure: Earl Warren, the Republican governor of California and future chief justice of the United States.

“Sacramento was extremely tolerant,” said Earl Warren Jr., 85, a son of the governor and a retired lawyer. “We had lots of gay people who were very prominent. If you knew or suspected that was the case, it didn’t make any difference. I was a Boy Scout in Sacramento in the 1940s, and we had gay leaders in the community who were also gay scout leaders. They were good friends and good leaders, and there was never any problem.”

In 1941, when Anthony Kennedy was 5, his family settled in Land Park, a neighborhood of curving streets, stately homes and lawns dotted with rhododendrons — a place, said Joe Genshlea, a lifelong friend, “where everybody knew everybody else, and life was just very stable.”

The writer Joan Didion, a good friend of the future justice’s older sister, was a frequent guest in the Kennedy home. The boxer Max Baer — whose son Max Jr. went on to play Jethro on “The Beverly Hillbillies” — lived a few blocks away. The Warren children, who attended the same public high school as the future justice, were often around.

Justice Kennedy’s parents were political and social fixtures in the capital. His father, Anthony, known as Bud, was a Republican lobbyist who represented tobacco interests — a whiskey-drinking, cigar-smoking, “poker-playing, keep-your-cards-to-your vest attorney,” said Dr. David Dozier, a retired neurologist and friend of the justice’s since kindergarten. His mother, Gladys, called Sis, hosted backyard parties for legislators and their wives.

Unlike his backslapping father and lively mother, the future justice was button-down and serious. (To this day, Dr. Dozier says, he has never heard his friend swear.) When he was in the fourth grade, his father arranged for him to work in the capital as a Senate page — a job that allowed him to observe Governor Warren up close.

Photo

Larry Levine, a McGeorge School of Law professor, says the justice has helped him get tickets to oral arguments in gay rights cases before the Supreme Court. Credit Max Whittaker for The New York Times

Today, legal scholars see parallels in Justice Kennedy’s record on gay rights and Chief Justice Warren’s record on civil rights, notably his landmark 1954 Brown v. Board of Education decision desegregating public schools. Lou Cannon, the Reagan biographer and California journalist, says Justice Kennedy told him long before he joined the court that he “thought that Warren was a good chief justice and a good lawyer, as well as being on the right side of history.” Justice Kennedy declined to be interviewed for this article.

The future justice was two years out of Harvard Law School and practicing law in San Francisco when, in 1963, his father died. His mother asked him to move home to take over Bud Kennedy’s law and lobbying business. He settled in Land Park and married Mary Davis, a teacher and Sacramento native, that year.

It was not long before Mr. Schaber paid him a call. A round-faced, bespectacled man who had a limp and wore one corrective shoe (a remnant of childhood polio), Mr. Schaber, born into modest circumstances in North Dakota, had moved to Sacramento as a child. When he became dean at McGeorge, an unaccredited night school above a downtown radio store, in 1957 at age 29, he was the youngest law school dean in the country.

A Democrat, Mr. Schaber — who went on to serve five years as presiding judge of the Sacramento County Superior Court — advised politicians, including governors, of both parties. “He was a must-visit consultant,” said Clark Kelso, a former Kennedy clerk and McGeorge professor, “to anybody who wanted to get elected to anything in Sacramento.”

He was outgoing and erudite. “He loved to eat well, and entertain well,” Mr. Kelso said, and dressed impeccably in tailored shirts. (For years after he joined the court, Justice Kennedy listed a gift of $400 worth of shirts from Mr. Schaber on his financial disclosure forms.)

If politics was Mr. Schaber’s passion, said Glendalee Scully, a retired McGeorge professor, “the law school was his baby,” and he saw in the future justice “a shining star.” When Mr. Schaber reached out, the young lawyer volunteered to teach contracts. Mr. Schaber replied that contracts was taken. “You,” he said, “can teach constitutional law.”

Justice Kennedy relished teaching, and Mr. Schaber became a mentor to him, Mr. Kelso said. The two worked closely as the dean directed the school’s merger with the University of the Pacific and its expansion to a 22-acre campus in Sacramento’s Oak Park neighborhood.

When Mr. Schaber developed a summer program on international law in Salzburg, Austria, the future justice signed on; he still spends a week teaching there each summer, which gives the school, now known as Pacific McGeorge, bragging rights to claim him as its “longest-serving faculty member.” In the school cafeteria, the Anthony M. Kennedy Wall of Judicial Honor features photographs of alumni who became judges. The wood-paneled law library displays a large painting of Justice Kennedy that will one day hang in the Supreme Court.

The two men traveled and often had dinner together, recalled Bernadine Schaber Adams, who was married to Mr. Schaber’s brother, Gary, then the business manager at McGeorge. “They were very close,” she said, adding that the family gave Justice Kennedy a pair of Mr. Schaber’s cuff links after he died. “Gordon knew all the good things about Judge Kennedy. So he went to bat for him.”

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The placid Land Park neighborhood in Sacramento, where Justice Kennedy grew up after moving there at age 5 in 1941. Credit Max Whittaker for The New York Times

In 1967, when Ronald Reagan became California governor, he wanted advice on a tax-cutting ballot initiative; Mr. Schaber recommended Mr. Kennedy. His work led Reagan to propose that President Gerald R. Ford appoint him to the federal appeals court. It led, as well, to a close friendship with Edwin Meese III, the Reagan adviser, who as attorney general under Reagan was instrumental in Justice Kennedy’s appointment to the Supreme Court.

If Mr. Schaber was indeed gay — as nearly a dozen people here who knew him, including law school colleagues and Mrs. Schaber Adams, say they suspect — he took pains to conceal it. He had at least one female companion, a judge who died in 1990. In gay circles, there were whispers about his sexuality. But in polite Sacramento society, people did not discuss it. Nor did he.

“He had been trained to maintain his decorum, I guess you would call it,” Mrs. Schaber Adams said. But of Justice Kennedy, she said, “I think he knew.”

Shift After Early Rulings

In his earliest rulings as a member of the appeals court, which he joined in 1975, Judge Kennedy did not demonstrate himself to be the friend of gay rights that Mr. Schaber later envisioned.

In 1976, he supported the firing of a federal employee for “homosexual conduct.” In 1980, he affirmed the right of the Navy to dismiss gay sailors. In 1982, he upheld the deportation of an Australian man who was in a same-sex relationship with an American.

But the 1980 case, Beller v. Middendorf, contained an important caveat. In dense legal language, Judge Kennedy noted “substantial academic comment which argues that the choice to engage in homosexual conduct is a personal decision entitled, at least in some instances, to recognition as a fundamental right and to full protection as an aspect of the individual’s right to privacy.”

The language surprised Judge Stephen Reinhardt, a Ninth Circuit liberal who joined the court that year. “I always thought of Tony as someone who never really got out of Sacramento, who was very provincial,” Judge Reinhardt said. “He was a very traditional, straight person, very moralistic.”

Sometime in the 1980s, a gay couple moved a few doors down from the Kennedys in Land Park; Mr. Genshlea recalls their arrival as “not a big deal.” Judge Kennedy took Mr. Meese and his wife to a housewarming party at the male couple’s home, according to a 1987 article in The Los Angeles Times, which quoted a friend expressing the future justice’s attitude: “If they can tolerate me, I can sure tolerate them.”

When Justice Lewis Powell announced his retirement from the court in 1987, many in Sacramento thought Judge Kennedy was the obvious pick. Instead, Reagan nominated another federal appeals court judge, Robert H. Bork, an ultraconservative who was rejected by the Senate. A second candidate, Judge Douglas H. Ginsburg, withdrew amid controversy over past marijuana use. Judge Kennedy, viewed as conservative yet more likely than Judge Bork to win bipartisan support, was the third choice.

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Memorabilia from Gordon Schaber, who was a dean at the McGeorge School of Law. Credit Max Whittaker for The New York Times

Mr. Meese, in an interview, said legal equality for gays was not discussed as an issue in the Kennedy evaluation. “That subject never came up,” Mr. Meese said, “and there was nothing in his background one way or another.”

When the Bork nomination imploded, Mr. Schaber and Professor Tribe — who had met then-Judge Kennedy while receiving an honorary doctorate from McGeorge — began talking. The previous year, Mr. Tribe had tried to persuade the Supreme Court to declare Georgia’s ban on sodomy unconstitutional. He lost that case, Bowers v. Hardwick, 5 to 4.

But even before Mr. Schaber sent the Kennedy opinions, Mr. Tribe had been reading them and concluded that the jurist “wouldn’t hesitate to overturn” Bowers. “I called Schaber, and I said, ‘I think this guy is terrific,’” Mr. Tribe said. “And Schaber said, ‘Why don’t you testify for him?’ And I said, ‘I will.’ And Schaber said, ‘That might make the difference.’ ”

Not everyone was so convinced; Professor Leonard, the gay rights expert at New York Law School, viewed then-Judge Kennedy as a “likely vote against us.” In the end, Mr. Tribe and Mr. Schaber were correct, though Mr. Schaber did not live to see it.

As the swing vote on a deeply divided court, Justice Kennedy typically sides with conservatives on issues like affirmative action and campaign finance, but with liberals on issues like the death penalty and gay rights. In 2003, in the case of Lawrence v. Texas, he wrote the opinion striking down Texas’s anti-sodomy law — and issued a rare apology from the Supreme Court. “Bowers was not correct when it was decided,” he wrote, “and it is not correct today.”

Today, advocates of same-sex marriage predict Justice Kennedy will take the next big step, by ruling it is protected under the Constitution. But Mr. Cappuccio, the former clerk, warns that “it would be a mistake to take Justice Kennedy’s vote in the same-sex marriage case for granted, because he also has a lifetime of experience as a judge who takes seriously the limited role of the federal courts.”

Here in Sacramento, where the county courthouse is now named in Mr. Schaber’s honor, those who knew him cannot help but wonder if the justice is thinking about his old friend. Shortly after Mr. Schaber died in November 1997, more than 750 dignitaries, judges and lawyers gathered in a downtown Sacramento auditorium to honor him on what would have been his 70th birthday. President Bill Clinton sent a letter; Robert Matsui, the Democratic congressman, spoke.

But all eyes were on Justice Kennedy, the American Bar Association newsletter reported, as he delivered the eulogy, with Mr. Schaber’s familiar round face displayed on a giant videoscreen.

He recalled Mr. Schaber’s record of helping others: “the student who needed financial aid,” or “the professional whose career was on the brink of ruin and just needed a second chance.”

And he talked of Mr. Schaber’s commitment “to a law that seeks compassion, to a law that seeks justice.” As he spoke, Justice Kennedy “paused to look up at Schaber’s face on the screen,” the newsletter said, “as if to seek approval from his longtime friend.”

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