"For more than a dozen years, Justice Anthony Kennedy stood at the center of the Supreme Court. He moved the court to the right, but while he often provided a crucial fifth vote to the court’s conservative wing, Justice Kennedy sometimes voted against it. And he picked a few causes that liberals cherish, making him their occasional, if fickle, guardian angel.
Among other things, Justice Kennedy was the bulwark against legal assaults against abortion, perhaps the one issue, more than any other, where the court’s influence and public attention so clearly intersect.
With Justice Kennedy on the bench, the thinking among liberals went, how bad could things get? Now that he’s gone, we’re about to find out.
It’s an odd moment for liberals to mourn Justice Kennedy, who’ll turn 82 next month, and for conservatives to relish his departure. He did nothing important for liberals this term, failing to provide even one crucial fifth vote to swing the outcome of a case in their direction.
Anthony Kennedy with President Ronald Reagan after taking the oath of office in 1988.Doug Mills/Associated PressAfter he had appeared to invite a challenge to partisan gerrymandering way back in 2004, a case finally arrived in the just-concluded term, with the social science measures of partisanship he had asked for. But Justice Kennedy ducked without even writing to explain why as the court decided the case on narrow technical grounds. And though his principal left-leaning legacy is his expansion of gay rights, especially marriage equality, he settled for another narrow resolution this month, writing the majority opinion that favored the religious objections of a Colorado baker over a gay couple’s right to be treated like anyone else when they walk into a store and order a wedding cake.
Justice Kennedy also voted with his conservative allies this week to dilute the power of minority voters in Texas. He helped to expand the reach of private, case-by-case arbitration, making it more difficult for employees to band together to confront their employers about wage theft and other problems. On Wednesday, hours before announcing his retirement, he helped diminish the influence of unions. And let’s not forget Justice Kennedy’s vote in Bush v. Gore and his opinion in Citizens United, with its blindness to the reality of how money corrupts our political process.
And yet, the difference between a court with Justice Kennedy and one with a Trump-chosen replacement for him is likely to be the difference between incremental and drastic change in crucial areas of law, between baby steps and giant ones.
The path of reasoning the court takes from case to case often matters as much as the outcomes. Some justices with a vision (and a majority behind them) are more patient than others. Justice Kennedy was of the slow-cook variety. Before his majority opinion in Obergefell v. Hodges, Justice Kennedy’s gift of same-sex marriage to the country, there were his majority opinions in United States v. Windsor, which granted some rights to gay couples, and Lawrence v. Texas, which struck down the sodomy laws that targeted them.
To a degree, this step-by-step development of law is Chief Justice John Roberts’s approach, too. (The chief justice also disappointed conservatives by twice refusing to strike down Obamacare.) But there’s no question that this new court with Chief Justice Roberts at its center will be a strikingly more conservative institution than the one we’ve lived with since Justice Kennedy took over the swing role from Justice Sandra Day O’Connor, who retired in 2005.
Consider, for example, that Justice Neil Gorsuch has already made it clear that he’d like to revisit big and seemingly settled questions. This week, he joined Justice Clarence Thomas in questioning whether the Voting Rights Act applies to electoral redistricting at all. It’s hard to imagine Justice Kennedy going along with that theory. It’s equally hard to imagine any of the other conservatives providing much of an obstacle.
Justice Kennedy wasn’t much of a protector of racial equality. But he prevented the end of affirmative action in university admissions in 2016. That was something.
He also stood up for criminal defendants in ways that counted, voting to strike down the death penalty for people who commit crimes as juveniles or are intellectually disabled, ordering California to address the terrible overcrowding in its prisons, and suggesting that he had serious doubts about the constitutionality of prolonged solitary confinement. “The degree of civilization in a society can be judged by entering its prisons,” he wrote, quoting Dostoyevsky.
If that was Justice Kennedy at his best, showing that he cared about society’s most vulnerable, his brief opinion this week in the travel ban case was him at his worst. He joined the majority opinion in full, upholding President Trump’s travel ban in spite of the prejudice against Muslims that originally drove it and in spite of his own commitment to tolerance and freedom of religion and expression.
Then in a solo concurrence, he faintly and abstractly rebuked “an executive” who strays from the path of adhering to the Constitution. Justice Kennedy would like the president to respect our constitutional values. He even thinks it’s “imperative” for him to do so. But the justice who held the fifth vote contented himself with lecturing that “an anxious world must know that our government remains committed always to the liberties the Constitution seeks” without doing a thing, in this instance, to hold accountable the actual executive who rails against any liberty, or right to due process, that checks his power.
Since at least the 1970s, in the wake of Roe v. Wade, conservatives have appreciated the importance of the Supreme Court, and have cast their votes in an effort to shape it, far more so than liberals or moderates. Now access to abortion is squarely on the line. Justice Kennedy joined with Justices O’Connor and David Souter to preserve it in 1992 in Planned Parenthood v. Casey. And he agreed with his four liberal colleagues in 2016 that Texas couldn’t close down clinics by claiming to protect women’s health, since the facts contradicted that claim. None of the conservatives on the court have given the slightest sign of stepping into those shoes. It’s just a matter of how far and fast they tack in the opposite direction.
Republicans will most likely push to confirm Justice Kennedy’s successor before the midterm elections. Between now and then, liberals can speak up, hold rallies and tie up the phone lines of Senators Susan Collins and Lisa Murkowski, the pro-choice Republicans from Maine and Alaska. Whatever happens, the ballot will be the voters’ response. The Supreme Court may already be transformed by then, it’s true. Still, if ever there were a time for more people to reckon with what the court means in American life, it’s now.