Anthony Kennedy leaves a void in the middle
High court will join ranks of the supremely divided
WASHINGTON – In an era when most government officials are loved by their friends and loathed by their foes, Supreme Court Justice Anthony Kennedy departs the federal bench Tuesday virtually alone in the middle.
Kennedy’s retirement at month’s end will leave the court, like the White House and Congress, with predictable partisans and ideologues whose opinions are almost never in doubt. The 82-year-old Californian, by contrast, remained a wild card in the nation’s increasingly divided democracy.
His game over 30 years on the high court was to find the center of gravity capable of winning five votes. He pulled conservative justices to the left and liberal justices to the right in his quest to “say what you want.” And say it he did, writing landmark decisions on gay rights, religious freedom, abortion, immigration, affirmative action, campaign finance and criminal procedure.
On June 27, when he announced his decision to retire, he received a litany of kudos and complaints – from the same sources. The conservative Alliance Defending Freedom offered praise and criticism, as did the liberal Brennan Center for Justice at NYU School of Law.
Indeed, Kennedy leaves much for conservatives and liberals to cheer and
chastise. He helped put George W. Bush in the White House; his opinion in Citizens United v. FEC a decade later opened the door to massive corporate spending in elections. He upheld the right to abortion in 1992, and his opinion in the 2015 case Obergefell v. Hodges struck down remaining state laws against same-sex marriage.
Asked to name his most significant contributions to the court during a judicial conference in California, Kennedy demurred.
“I think that’s more for other people to say than for me,” he said.
He defended the court against criticism that it fails to reflect majority opinion, arguing that the justices’ reasoning for its decisions ultimately leads to understanding, acceptance and majority support. He cited as an example the court’s ruling in 1989, during his first full term, that burning the American flag is protected under the Constitution.
“It is poignant but fundamental that the flag protects those who hold it in contempt,” he wrote in concurrence.
Throughout his three decades on the court, Kennedy and his fans and foes agreed, he sought to put individual rights and human dignity first.
“The law is the story of our moral life,” he said at the 9th Circuit Judicial Conference in Anaheim last week. “Behind the cases, there’s always a real person.”
Despite writing a rising number of major Supreme Court rulings as his career progressed, Kennedy’s most important role was to swing the majority in 5-4 cases. He cast the deciding votes in recent years on gay marriage and gun ownership, prayer and privacy, campaign finance and capital punishment.
Unlike most of his colleagues, Kennedy was seldom predictable. Before the court’s decision upholding President Barack Obama’s health care law in 2012, most court watchers predicted he would cast the deciding vote. That fell to Chief Justice John Roberts, whose support saved the statute. Kennedy said it should have been declared unconstitutional.
Over three decades, Kennedy wrote nearly 300 majority opinions and an equal number of concurrences and dissents. He was the go-to justice for close cases: 92 of his majority opinions were decided 5-4.
On some issues, Kennedy remained reliably conservative. He wrote the court’s most controversial decision this century in Citizens United, clearing the way for corporations and other outside groups to spend unlimited amounts on elections. For Kennedy, it was a matter of free speech.
For most of his career, he was a reliable vote against the use of racial preferences at school or on the job, having never voted for an affirmative action program. But in 2016, he wrote the court’s 4-3 decision upholding the University of Texas’ admissions system for minority students.
As was the case that year on both affirmative action and abortion, Kennedy is far more famous for the times he veered from his conservative roots – most notably when the issue was equal protection under the Constitution for gays and lesbians.
Writing for the court in cases from Colorado in 1996, Texas in 2003 and New York in 2013, Kennedy declared as unconstitutional laws that allowed discriminatory practices, criminalized private sexual behavior and denied federal benefits to legally married same-sex couples. By the time a group of same-sex marriage cases from Ohio, Michigan, Tennessee and Kentucky reached the court in 2015, Kennedy’s key vote was all but taken for granted.
“His greatest legacy may rest with his decisions recognizing the dignity and rights of lesbians, gay and bisexual people,” said David Cole, legal director for the American Civil Liberties Union.
As he assumes what’s called “senior status,” Kennedy says he intends to stay involved, doing special assignments for Chief Justice John Roberts and perhaps hearing appeals court cases, as retired justices sometimes do.
“We must always think about improving the rule of law,” he said last week. “For us, it’s a promise. It’s a promise of liberty. It’s a promise of freedom. It’s a promise that we can plan our own destiny.”