I am delighted to be here at Pepperdine where I know that all of my questions about the mystery of the Roberts Court will be answered. Dean Kmiec, in his kind introduction, said this is a Court of nine ruled by one. And in cases involving executive power, this pattern holds. The views of Justice Kennedy on executive power in the domestic and foreign spheres are indeed defining the direction of the Roberts Court.
Broadly, we have four more conservative Justices who seem inclined to defer to the executive branch not only in foreign affairs, but also in contested interpretations of domestic statutes. Consider, for example, the Massachusetts v. EPA’ case, construing the EPA’s power to regulate global warming, and the Gonzales v. Oregon case in which the Attorney General, John Ashcroft, attempted to construe a federal law to prohibit doctors from prescribing drugs to cause death in compliance with the Oregon “Death with Dignity” law.
In these foreign and domestic cases, there were four more liberal Justices who were more skeptical of executive power, and they were sometimes joined by Justice Kennedy who provided the important fifth votes. What is the source of Justice Kennedy’s vision of executive power, and how can his vision be distinguished from those of his more conservative and liberal colleagues?