The myth of the “right-wing” Roberts Court is just that: a myth.  One need look no further than last week’s Kennedy v. Louisiana and District of Columbia v. Heller decisions to confirm that this Court is not driven by a conservative agenda. To the contrary, it is driven by the mere whim of one Mr. Justice Anthony Kennedy.  He was the swing vote that decided both cases.

It’s one thing to be a swing vote.  It’s another to be a swing vote that does not “swing,” based on any particular judicial philosophy.  Kennedy does not seem to know whether he agrees with the liberal Justices (who believe that the Constitution is a living, breathing document that can change when judges decide that social mores have sufficiently changed) or the conservative Justices (who know that the Constitution can be changed only via constitutional amendment).

The Kennedy decision is a prime example of what one gets if a liberal judicial philosophy is applied. The case involved the rape of an 8-year old girl.  Justice Kennedy acknowledged that the crime “was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it, sought to express by sentencing petitioner to death.”  Indeed, the girl’s injuries were so extensive that emergency surgery was required. Her cervix was separated from and her rectum protruded into her vagina. Her perineum withstood a bad tear.  The jury, sufficiently horrified at the inhumane treatment of a young child, decided to sentence the rapist to death, as permitted by Louisiana law. But last week, the Supreme Court (i.e. Justice Kennedy) decided that such a punishment violates the Eighth Amendment’s prohibition on “cruel and unusual punishments.”

The crime inflicted on this girl (by her stepfather!) may be horrific, but Kennedy decided that the “evolving standards of decency” in American society prohibit Louisiana from imposing the death penalty. Kennedy chose not to look to the plain meaning of the text, explicitly rejecting the notion of applying standards in place at the time that the Eighth Amendment was adopted in 1791. Instead, he held, the “applicability [of the phrase] must change as the basic mores of society change.” Most other states, Kennedy noted, have not provided the death penalty option for child rapists.  Given the “national consensus” against such a punishment, Louisiana, it would seem, can’t possibly justify this policy decision within its own borders. The Constitution according to Kennedy forbids it.

Taken to its logical extreme, the Kennedy decision finds that a constitutional amendment is not required to modify the Eighth Amendment. Instead, the Justices in their infinite wisdom can tell the rest of us when a specific action is outside of the “standards of decency.” Of course, one does have to wonder why the private opinions of five individual Justices regarding appropriate social mores gets to trump the opinions of Louisiana voters.  But Justice Kennedy seems unconcerned that his private opinion is trumping Louisiana law.

Or perhaps he thought that he’d make up for it the next week in Heller when he joined Justice Scalia’s majority opinion.

Justice Scalia’s opinion in Heller stands in sharp contrast to the Kennedy death-penalty decision. The decision interpreted the meaning of the Second Amendment, which reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Rather than engaging in a discussion of what social mores about gun ownership should be applied in the year 2008, Justice Scalia’s densely footnoted opinion turns to a detailed analysis of what the plain words of the Second Amendment were taken to mean when the words were adopted in 1791. Quite simply, the majority opinion sought to restrain itself to the constitutional text. As it did so, it found the ban on gun ownership in the District of Columbia to be unconstitutional. If social mores about gun ownership have changed, then a constitutional amendment is the appropriate cure—not an activist Court.

How amazing that Justice Kennedy somehow managed to sign these two opinions, grounded in very different principles. Kennedy relies upon the wisdom of judges to tell the people when their Constitution has become out-of-date. The judges may then change the Constitution accordingly, without the hassle of actually asking the voters for their opinions. Heller assumes that judges must be restrained by the plain text of the law. A self-governing people may amend their Constitution through the political process whenever they choose to do so.  Judges do not have the authority to act outside of the bounds of the text in the meantime.

No, this Court is not a right-wing Roberts Court.  It’s an unpredictable and capricious Kennedy Court.

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