Kennedy re­stores lib­eral Court

Cecil Whig - - FRONT PAGE - Dana Milbank

— They cel­e­brated out­side the Supreme Court af­ter Mon­day’s sur­prise de­ci­sion reaf­firm­ing abor­tion rights. They danced to Michael Jack­son (“I want to love you ...”), as they had ear­lier to the Spice Girls and to Harry Be­la­fonte’s “Jump in the Line.”

In the front row, fac­ing the mar­ble tem­ple, a young woman held up a home­made sign: “Roses are red Vi­o­lets are blue Abor­tion is le­gal So f — you.” Jus­tice An­thony Kennedy didn’t use those words, but that was, es­sen­tially, the valen­tine he de­liv­ered to the anti-abor­tion move­ment. The jus­tice, sid­ing with the lib­eral bloc, lent his name to Jus­tice Stephen Breyer’s re­sound­ing de­fense of abor­tion rights in his 5-to-3 ma­jor­ity opin­ion. In do­ing so, Kennedy put an end to any thought of ban­ning abor­tion in Amer­ica any­time soon — even if a fu­ture Repub­li­can pres­i­dent names a con­ser­va­tive to fill the late An­tonin Scalia’s seat.

The Repub­li­can-con­trolled Se­nate refuses to con­sider Pres­i­dent Obama’s nom­i­nee, Mer­rick Gar­land, but a fifth lib­eral jus­tice has ar­rived any­way. Kennedy, a Rea­gan ap­pointee and the longest-serving cur­rent jus­tice, sur­prised many last week by join­ing the lib­er­als in de­fend­ing race-based af­fir­ma­tive ac­tion. In ear­lier terms, he pro­vided the key vote in le­gal­iz­ing same-sex mar­riage.

It’s not that Kennedy has be­come a bleed­ing heart (he sides with the con­ser­va­tives on gun rights, cam­paign fi­nance and Oba­macare) but that he has split with con­ser­va­tive col­leagues such as Sa­muel Al­ito who, by tem­per­a­ment, are dis­in­clined to find con­sen­sus.

You could see it Mon­day morn­ing in the cham­ber, where, for the se­cond week in a row, Al­ito took the un­usual step of read­ing aloud from his dis­sent in a case that found Kennedy on the op­po­site side.

While Breyer read the ma­jor­ity opin­ion in the abor­tion case, Al­ito was a study in ag­i­ta­tion. He shook his head, raised his eye­brows, clenched his jaw, rocked in his chair and car­ried on a silent con­ver­sa­tion with him­self — ap­par­ently re­hears­ing, in his head, his dis­sent.

When Breyer fin­ished, Al­ito pulled up his mi­cro­phone and de­liv­ered a bit­ter re­but­tal, even cit­ing Breyer by name. He had the acid­ity of Scalia’s leg­endary dis­sents, but he lacked Scalia’s neu­tral­iz­ing hu­mor: “No jus­ti­fi­ca­tion. ... Ob­vi­ously wrong. ... Con­trary to a car­di­nal rule. ... This is an abuse of our author­ity. The ma­jor­ity in this case has not done what a court of law must do.”

Dur­ing this per­for­mance, Kennedy sat calmly, read­ing and rock­ing gen­tly at times. But mostly he sat, lips pursed, star­ing di­rectly ahead of him — as still and silent as the stone like­nesses of Ham­murabi, Moses, Solomon and Con­fu­cius on the frieze above him.

He’s no King Solomon, but Kennedy, the per­pet­ual swing vote, may be the dom­i­nant law­giver of his day. Un­like Al­ito and Clarence Thomas (and, to a lesser ex­tent, Chief Jus­tice John Roberts), he rec­og­nizes the im­por­tance of pub­lic con­sen­sus on cul­tural is­sues, such as the grow­ing ac­cep­tance of gay mar­riage. On abor­tion, which chron­i­cally di­vides Amer­i­cans, Kennedy has avoided desta­bi­liz­ing change.

“No one who fol­lows the Court can doubt that he finds abor­tion very trou­bling,” the At­lantic’s Gar­rett Epps wrote ear­lier this year. “But no one also doubts that Kennedy takes the Supreme Court, and its place at the cen­ter of Amer­i­can law, se­ri­ously as well. His head here may con­flict with his heart.”

In Whole Woman’s Health v. Heller­st­edt — the Texas case, de­cided Mon­day, that would have forced abor­tion clin­ics to close by im­pos­ing near-im­pos­si­ble re­stric­tions on them — the ap­pel­late court brazenly ig­nored the 1992 Planned Par­ent­hood v. Casey de­ci­sion, which Kennedy co-wrote. He was hav­ing none of it. He didn’t merely agree to strike down the law on tech­ni­cal grounds; he joined a full-throated af­fir­ma­tion of abor­tion rights.

Jus­tice Elena Ka­gan looked to­ward the press and gave a sat­is­fied smile as Breyer said they had de­clared the Texas law un­con­sti­tu­tional be­cause it im­posed an “un­due bur­den” on abor­tion seek­ers. Breyer ridiculed the idea that abor­tion needed stricter reg­u­la­tions than pro­ce­dures such as child­birth (which is 14 times as deadly), colono­scopies (10 times as deadly) and li­po­suc­tion (28 times as deadly).

Al­ito was grim. Lean­ing for­ward, his lower jaw pro­trud­ing, he in­formed the ma­jor­ity that they are en­cour­ag­ing the view that “if at first you don’t suc­ceed, sue, sue again.” He said that the sort of thing that oc­curred in the case could have qual­i­fied as “abu­sive lit­i­ga­tion.” He ac­cused the ma­jor­ity of be­ing lazy and of ig­nor­ing “the nor­mal rules.”

His dis­cour­age­ment is un­der­stand­able. The Se­nate’s re­fusal to con­firm Gar­land was sup­posed to pre­vent a lib­eral ma­jor­ity on the court. But, some­how, it hap­pened any­way.

Dana Milbank is a syn­di­cated colum­nist. Con­tact him at danamil­bank@wash­post. com.


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