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Justice Kennedy Squanders A Potential Legacy

President Reagan meeting with Judge Anthony Kennedy in the Oval Office in 1987
Anthony Kennedy (right) meeting with Ronald Reagan in 1987 as a U.S. Supreme Court nominee.

If you are unlucky enough to be sentenced to die as a result of a prosecutor’s misbehavior, you had better hope your luck – and Justice Anthony Kennedy’s health – is much better when your case reaches the U.S. Supreme Court.

A recent decision demonstrated just how precarious a position Kennedy has created for prisoners on death row. The facts of the case are roughly these: A prosecutor tries a capital case. Later, the defendant appeals his sentence on the basis of prosecutorial misconduct. The former prosecutor – now a justice of the state Supreme Court – declines to recuse himself and votes to uphold the sentence, rejecting claims of his own office’s prior malfeasance.

The U.S. Supreme Court reviews the case. Three conservative justices wash their hands of this travesty. The four liberals vote to overturn the sentence. They are joined by Justice Kennedy, thus sparing the defendant’s life, at least for the time being, as his case returns to the state Supreme Court for another appellate hearing.

This is how Williams v. Pennsylvania played out. In a guest analysis for SCOTUSBlog, Richard M. Re characterized the majority opinion, written by Kennedy, as “artificially narrow,” focused on a very specific reading of when a judge must recuse him- or herself from a case.

This narrow ruling is all the stranger – and more disheartening – because the defendant has become a rallying point for death penalty opponents after Pennsylvania Gov. Tom Wolf cited Williams’ case in enacting a moratorium on executions in the state in early 2015. Williams v. Pennsylvania gave Kennedy the perfect opportunity to cast the deciding vote to abolish capital punishment entirely nationwide. It was an opportunity he chose not to take.

In effect, Kennedy is relying on a future version of himself, actual or metaphorical, to prevent atrocious outcomes such as the one that would have happened if he had voted the other way in Williams. A 4-4 tie would have let stand the lower court decision, in which the former prosecutor played a role. And it would have thus returned the defendant to death row, protected only by the ongoing gubernatorial moratorium on executions in his state.

This is not the first opportunity Kennedy has squandered where capital punishment is concerned. It is a strange track record for a justice who wrote an impassioned opinion condemning the cruelty of solitary confinement, one in which he argued against the public’s apathy toward how we treat prisoners, especially those on death row who may be subjected to years of isolation while awaiting execution. Anti-death penalty activists, as well as at least one of Kennedy’s fellow justices, have long hoped Kennedy’s criticism of our penal system would eventually lead him to put an end to a practice that is worse than one he has already staunchly condemned.

Does Kennedy believe in his own immortality? Does he assume a Democrat will win the next election, choose the replacement for the late Justice Antonin Scalia and, in the process, provide a deciding vote other than his to end capital punishment? Kennedy, of course, must realize that even a Democrat-appointed Supreme Court nominee can produce surprises once seated on the bench, assuming a Democrat does secure the White House in November. Does he simply think it really doesn’t matter in the grand scheme of things if the future court rules opposite the way he would have ruled in specific capital cases? Does he just not care?

I don’t know. All I know is that by sustaining capital punishment in general, while opposing its application in specific egregious circumstances, Kennedy continues to allow for the future irreversible miscarriage of justice in ways that deprive his fellow citizens of the basic right to live out their natural lives. This is a shame, because history will remember Kennedy as an open-minded jurist who was typically steadfast in defense of personal freedom. But not when it came to the freedom not to be subject to ritual murder by one’s own state.

More’s the pity.

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