Alliance leans Supreme Court to the left
Liberal victories reflect partnership between Justices Breyer, Kennedy
WASHINGTON — The Supreme Court ended its term this week with two liberal victories — on abortion and affirmative action — that reflect in part a deepening center-left alliance between Justices Anthony Kennedy and Stephen Breyer.
Breyer is the most moderate of the court’s four Democratic appointees, and Kennedy is easily the most moderate of the four Republican appointees. Both share an interest in deciding cases based on a practical assessment of the facts, and not rigid doctrines or legal ideology.
This term, Kennedy and Breyer voted together more than 91 percent of the time, among the highest rates of agreement of any two justices this term, according to the Scotusblog website.
And history has shown when the court is closely split between liberals and conservatives — as it has been since the February death of Justice Antonin Scalia — it’s often the moderates who take on a more prominent role.
Because court proceedings are private, it’s difficult to know whether the agreement between Kennedy and Breyer is merely coincidence, a reflection of caseloads or the result of mutual influence.
But in recent years, clerks have noted that Breyer and Kennedy are often seen in the court building talking about cases.
Their agreement is also apparent in decisions. Kennedy provided the key fifth vote in the abortion and affirmative action decisions. Breyer, meanwhile, joined Kennedy and other conservatives in recent rulings on criminal justice and search warrants.
Perhaps the clearest sign of their bond was when Kennedy chose Breyer to write the opinion in the abortion case. As the senior justice in the majority, Kennedy could have written the decision or assigned the important case to one of the female justices. But Kennedy appears to have had more confidence that the likeminded Breyer would craft an opinion he could sign.
Breyer, 77, grew up in San Francisco, graduated from Stanford University and Harvard Law School. The lifelong Democrat lived and worked in Boston before he was appointed to the high court.
Kennedy, 79, was raised in Sacramento and, like Breyer, has degrees from Stanford and Harvard Law School. The lifelong Republican joined the high court in 1988, the last appointee of then-President Ronald Reagan.
Breyer spoke for a 5-3 majority to reject a Texas law set special medical standards for abortion clinics. Although lawmakers said they sought to protect the health and safety of women, Breyer said a careful look at the evidence showed the measures would mostly make it harder for women to obtain a legal abortion.
Throughout his career, Kennedy has remained uncomfortable with the issue of abortion. He is Catholic and personally opposed to abortion. In 1992, he cast the crucial fifth vote with some reluctance to affirm the right to abortion. But in 2007, he wrote an opinion upholding a ban on socalled partial-birth abortions that take place late in a pregnancy.
There is reason to think Kennedy changed his mind on the Texas abortion law. In the fall of 2013, the Supreme Court by a 5-4 vote allowed Texas to enforce a provision that required all abortion doctors to have admitting privileges at nearby hospitals. At the time, Breyer wrote a dissent saying the law would shut down about half of the clinics and leave rural women with few options.
But this spring when justices made their initial vote in the abortion case, Kennedy sided with Breyer and the three female justices to strike down the law entirely.
Kennedy also appears to have moderated his views on affirmative action. In the past, he had been skeptical of race-based affirmative action policies. He surprised many with his opinion last week concluding a University of Texas policy could be upheld because it was limited.
“This suggests that in areas where Justice Kennedy has conflicting impulses — whether to allow consideration of race, whether to allow restrictions on abortion — he can sometimes be persuaded by evidence about how the laws or programs actually operate and the effects that they can have,” Brianne Gorod, counsel for the Constitutional Accountability Center and former law clerk for Breyer said.