THE MAN IN THE MIDDLE
Appointed by Reagan, Anthony Kennedy didn’t always please the Right, but his retirement clears the way for President Donald Trump to ensure conservative control of Supreme Court
WASHINGTON — Supreme Court Justice Anthony Kennedy hated the title of “swing justice” because he considered it a demeaning term more suitable for politics than the majesty of the law.
But in choosing to announce his retirement Wednesday, the conservative who was the crucial vote in so many of the court’s biggest cases made a political choice of his own, allowing President Donald Trump to pick his successor and, more than likely, ensure conservative control of the court.
Kennedy, 81, spent more than a decade as the court’s most frequent tie- breaker, taking on that role after Justice Sandra Day O’Connor retired in 2006. In the years since, Kennedy fully embraced his role on an ideologically split court. Not bad for a man who was President Ronald Reagan’s third choice when a high- court seat came open in 1987.
Kennedy’s legal reasoning sometimes made his critics, mainly on the right, sputter. “Legalistic argle- bargle” was conservative colleague Antonin Scalia’s description of the reasoning in Kennedy’s opinion striking down part of the federal anti- gay marriage law in 2013.
The California native wrote the Supreme Court’s four most significant gay rights cases and was also a key player in the court’s decision to reaffirm a woman’s right to an abortion. He also wrote opinions that reined in the use of the death penalty and gave suspected terrorists detained at Guantanamo Bay, Cuba, the right to plead for their freedom in civilian courts.
At the same time, Kennedy wrote the Citizens United decision in 2010 that upended campaign finance restrictions and was a fifth vote in landmark cases granting gun rights and striking down part of the Voting Rights Act.
In his final term, he did not once join the four liberals in the majority of a closely divided case. He was part of conservative majorities to uphold Trump’s travel ban, deal labor unions a major financial setback, approve Ohio’s aggressive purge of its voter rolls and prohibit millions of workers from banding together to complain about pay.
Scholars struggled to find a thread that ran through all his votes, but no one doubted his influence.
One of the few big cases in which Kennedy was on the losing side was the court’s consideration of President Barack Obama’s health care overhaul in 2012. Playing Kennedy’s usual role, Chief Justice john Roberts joined with the court’s liberals to uphold the law.
Kennedy worried about judges taking too active a governing role. “No society should leave it to a court to make most of its decisions,” he once told an acquaintance. “No court can live up to that.”
Kennedy’s sometimes- public brooding about his role was derided by some legal scholars.
His critics said that his decisions in so many of the court’s high- profile cases belied his rhetoric about limiting the courts’ role. That was the thrust of Scalia’s dissent in the 2013 gay marriage case in which Kennedy wrote a majority opinion that was joined by his four liberal colleagues.
That opinion in U. S. v. Windsor held that legally married gay couples must receive the same federal benefits as all other married couples and decried the second- class status of same- sex couples, even in states that granted them the right to marry. It was followed two years later by Obergefell v. Hodges, the decision that said same- sex couples have a right to marry anywhere in the United States.
The Obergefell case was the fourth in a series of opinions in which Kennedy delivered forceful, and seemingly heartfelt, majority opinions in favor of gay rights.
That was not a moniker many would have predicted for Kennedy when he joined an ideologically divided court in 1988. His nomination followed the failed and bruising effort to put Robert Bork on the court and the withdrawal of Douglas Ginsburg after reports surfaced he smoked marijuana while a law professor. Kennedy, who was confirmed without an opposing vote, was viewed warily by some in Reagan’s circle as insufficiently conservative, but he was well- known and liked by the president and Reagan confidant Edwin Meese, then the U. S. attorney general.
At first, Kennedy was a steady ally for Chief Justice William H. Rehnquist and other conservatives, delighting conservative scholars and confirming the fears of women’s and liberal groups.
Yet it wasn’t long before Kennedy gradually showed greater independence, increasingly disagreeing with the court’s conservatives on social issues such as abortion, freedom of religion and freedom of expression.
When a news article suggested that Kennedy was undergoing the same transformation as conservative- turned- liberal Justice Harry A. Blackmun, Blackmun wrote to Kennedy: “Don’t worry. It’s not fatal.”
It is perhaps hard to overstate how different the court will be without Kennedy.
Court commentator Tom Goldstein once said, “It’s Justice Kennedy’s world. We all just live in it.”