Kennedy will be remembered for gay rights decisions
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. Since then, Kennedy fully embraced his role on an ideologically split court. Not bad for a man who was President Ronald Reagan’s third choice for a high-court seat in 1987.
The California native wrote the Supreme Court’s four most significant gay rights cases and was a key player in the decision to reaffirm a woman’s right to 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. Kennedy wrote the 2010 Citizens United decision 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.
Scholars struggled to find a thread that ran through 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.
Far from an ideologue, Kennedy seemed to wrestle with decisions.
“We, of course, are bound by the facts, the law, the rules of logic, legal reasoning and precedents,” he once said. “But we are also bound by our own sense of morality and decency”
Kennedy also 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 said.
Kennedy will likely be best remembered for his decisions in gay rights cases. He was the author, in 2015, of Obergefell v. Hodges, the decision that said same-sex couples have a right to marry anywhere in the United States.
It was the fourth in a series of opinions in which Kennedy delivered forceful, and seemingly heartfelt, majority opinions in favor of gay rights. In 1996, he wrote for the court in overturning an anti-gay Colorado constitutional amendment. In 2003, Kennedy again led the way in striking down state bans on gay sex in Lawrence v. Texas. And in 2013, in U.S. v. Windsor, he wrote for the court that legally married gay couples must receive the same federal benefits as other married couples.
“Kennedy has now firmly secured his place in history as ‘the first gay justice,’ ” Cornell University law professor Michael Dorf blogged when Windsor was announced.
That wasn’t a moniker many would have predicted for Kennedy when, in 1988, after more than a decade as a federal appellate judge in California, he replaced Lewis F. Powell, joining an ideologically divided court. His nomination followed the failed and bruising effort to confirm Robert Bork and the withdrawal of Douglas Ginsburg after reports surfaced that he smoked marijuana while a law professor.
At first, Kennedy was a steady ally for Chief Justice William H. Rehnquist and other conservatives. Yet before long, Kennedy showed greater independence, increasingly disagreeing with conservatives on social issues.
When a news article suggested that Kennedy was undergoing the same transformation as conservative-turned-liberal Justice Harry A. Blackmun, Blackmun wrote Kennedy: “Don’t worry. It’s not fatal.”
Two rulings in June 1992 confirmed his independence and created the perception among some critics that Kennedy gave in to pressure from a liberal cultural elite.
In the first case, Kennedy initially joined with his conservative colleagues in believing that there was no problem with a rabbi giving a prayer at a public school graduation, but switched sides in the end. Days later, Kennedy was part of a majority to reaffirm the court’s Roe v. Wade decision declaring a woman’s constitutional right to abortion. The Planned Parenthood v. Casey opinion was an unusual collaboration of three justices — O’Connor, Kennedy and David Souter. In that case, too, Kennedy first sided with and provided a majority to justices who would have effectively overruled Roe.
Kennedy, a Roman Catholic, told an interviewer that he couldn’t let his personal distaste for abortion determine his vote.
In 1992, Kennedy wrote for a conservative majority to uphold a federal law banning an abortion procedure known as partial-birth abortion, giving hope to abortion opponents. But the court did not, after 1992, come close to questioning the abortion right announced in 1973.
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.”
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