Mark Yohalem, who clerked for Justice Kennedy in the 2006 term and is now a partner at Munger Tolles & Olson LLP, said that with regard to criminal cases, the justice's emphasis on the rule of law saw him put great weight both on society's interest in deterring crime and the need to keep the power of the state appropriately in check.
"Abstractly, the rule of law can fall on either side of the 'v.' in a criminal case," Yohalem said. "I think Justice Kennedy had both of those perspectives to a great degree."
Yohalem pointed to Justice Kennedy's decision in Koon v. U.S. as illustrating that point. The case dealt with the sentence of a Los Angeles Police Department officer convicted of civil rights violations in the Rodney King beating. Writing for the court, Justice Kennedy partly reversed the Ninth Circuit for rejecting a trial court's departure from the sentencing guidelines.
Toward the end of the opinion, the justice wrote that "it has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue."
"That's essential Justice Kennedy," Yohalem said.
The case was in some ways a forerunner to U.S. v. Booker, which was decided eight years later and saw the court declare the sentencing guidelines to be advisory rather than mandatory.
The theme of balancing the responsibility of the state with individual liberty was central to the criminal cases Justice Kennedy will likely be best remembered for — cases addressing defendants' Eighth Amendment right to be free from cruel and unusual punishment.
Justice Kennedy penned the opinion in Hall v. Florida, which rejected Florida's numerical IQ threshold for deciding when a person is mentally disabled and therefore not eligible for the death penalty under the Eighth Amendment.
He also wrote for the majority in Roper v. Simmons, in which the court held that death sentences for underage defendants is cruel and unusual. And he wrote for the court when it invalidated a state law allowing the death penalty to be imposed on a defendant who raped a child in Kennedy v. Louisiana.
In the opinion, Justice Kennedy started out by acknowledging it was impossible to "capture in full the hurt and horror" of the crime, but went on to analyze evidence for a consensus among states that the death penalty should not be used in a case where the defendant neither killed nor intended to do so.
"In most cases, justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense," the justice wrote.
Like his peers, Justice Kennedy had to deal with capital cases in a more immediate way. Steve Kwok, a partner at Skadden Arps Slate Meagher & Flom LLP who clerked for him in the Supreme Court's 2003 term, remembered the justice spending late nights talking over and scrutinizing applications to stay executions, which are often carried out at midnight.
"It's another example of how conscientious a justice he really was," Kwok said.
Criminal law professor Daniel Epps, who clerked for Justice Kennedy in 2009, said that after he is replaced, the court may be less likely to take on big Eighth Amendment law cases — including the hard look at the effects of solitary confinement that Justice Kennedy had called for in Davis v. Ayala.
Depending on who is chosen to fill the gap, the justice's retirement could have other, hard-to-predict repercussions in the criminal realm.
In a recent ruling in Currier v. Virginia, for example, Justice Kennedy's concurrence with the conservative justices found a narrow way out of a complicated double jeopardy question. Justice Neil Gorsuch went further, flirting with reconsideration of a case from the 1970s.
Epps, who teaches at the Washington University School of Law (St. Louis) and hosts a Supreme Court podcast called First Mondays, said a case like Currier could go differently in the future, depending on the judicial philosophy of the next justice.
"Once he is replaced, I think we should expect to see a court that is more willing to rethink areas of doctrine," Epps said.
The former clerks said that their time with the justice resonated throughout their later careers in significant and sometimes unexpected ways.
Kwok went on to become a prosecutor in Manhattan and later to work as a U.S. Department of Justice legal adviser at the U.S. embassy in Beijing. Part of that job meant speaking on the rule of law and the U.S. legal system at local law schools, as well as judges' and prosecutors' offices.
Kwok was surprised to find that Justice Kennedy was a familiar name to some in the legal community in China, perhaps due to his involvement with the Peking University School of Transnational Law.
"Sometimes I would bring up the justice, and people's eyes would light up," Kwok said. "'Oh, Justice Kennedy! I know about Justice Kennedy.'"
For Yohalem, what stuck with him as he went on to a job in the U.S. attorney's office in Los Angeles was the habit of thinking seriously about how the pursuit of justice both empowers and constrains the government.
"When I became a prosecutor myself, those were the values we had instilled in us as members of the Department of Justice," Yohalem said. "You were not winning at any cost. Instead, the prosecutors themselves were expected to understand that justice had a role on both sides of the 'v.'"
--Editing by Philip Shea and Alanna Weissman.
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