Jun 29

Jun 29 Kennedy Resigns with a Whimper By Daniel Tagliarina and Allyson Yankle

Justice Anthony M. Kennedy, the currently-longest-serving associate justice on the U.S. Supreme Court, announced on June 27, 2018 at the close of the Court’s term that he is retiring. Originally nominated by President Reagan in 1987 as the third-attempted replacement for the seat previously held by Justice Powell, Kennedy was confirmed to the Court in 1988 and has served on the Court for 30 years.

During his time on the Court, Kennedy has fostered a reputation as a moderate. He spent much of his time on the Court as the “swing justice,” the justice most likely to be in the majority of a narrowly-divided (5-4) case, because he is the one most likely to be flexible enough to side with either ideological camp. When aligned based on ideology, Kennedy has been the median justice on the Court since Justice O’Connor retired, and was replaced by Justice Alito, in 2006. Institutionally speaking, this means that Kennedy has been the Court’s midpoint for more than a decade now. A position that, almost certainly, will now fall to Chief Justice Roberts.

While Kennedy has been the ideological middle point on the Court, this is a Court that has, for decades, been drifting to the right. However, as the median justice, Kennedy has maintained a reputation as a moderate in part because he occasionally votes with the so-called liberal justices in addition to the so-called conservative justices.

However, as The Washington Post recently documented, Kennedy most often sides with the conservative justices in narrowly decided cases, with his overall ideology shifting farther to the right in his final term on the Court, despite some high profile rulings where he joined the liberal justices in recent years. In fact, it is these high profile decisions that are largely responsible for Kennedy’s reputation as a moderate.

Kennedy’s “swings” came in sharply divided cases that often garnered a lot of national attention. This happened fairly early in his time as a Supreme Court justice, and to great attention, when Justices Kennedy, O’Connor, and Souter—all Republican nominees—jointly authored the opinion for the court in the 1992 case Planned Parenthood v. Casey that, at least nominally, upheld Roe v. Wade as valid precedent.

These three did so, however, while fundamentally altering the position of abortion protections in U.S. law and shifting the legal standard to the “undue burden” test. This new test allows for laws to restrict abortion access so long as they did not create an “undue burden” on the ability of women to access safe, legal abortion procedures.

More notably, however, are Kennedy’s rulings pertaining to issues of LGBTQ rights (although these primarily focus on homosexuality, and not any of the broader legal concerns of the LGBTQ community). These include Lawrence v. Texas, which in 2003 overturned legal bans on sodomy arguing such bans violate due process rights protected by the 14th Amendment. This was a 6-3 ruling, although O’Connor did not actually join Kennedy’s majority opinion for the Court. Also included are U.S. v. Windsor (2013) and Obergefell v. Hodges (2015) which struck down part of the Defense of Marriage Act (DOMA) and state bans on same-sex marriages, respectively, with both of these being 5-4 rulings.

Other areas where Kennedy struck a reputation as a swing justice whom liberals could support include school prayer (Lee v. Weisman, 1992 case with a 5-4 vote), affirmative action (Fisher v. University of Texas, 2016 case with a 4-3 vote), and the death penalty (Kennedy v. Louisiana, 2008 case with a 5-4 decision).

In these narrowly divided cases, Kennedy’s opinions went beyond interpreting the law to stress the notion of dignity in the law. Most commonly, Kennedy considered the impact of dignity in relation to how and when the government can become involved in the lives of individuals.

The idea that individuals should have the freedom and dignity to construct their own lives without government interference is seen in cases ranging from issues about the humane treatment of prisoners (Barber v. Thomas and Brown v. Plata), abortion restrictions (Gonzales v. Carhart, Ohio v. Akron Center for Reproductive Health, Planned Parenthood v. Casey, and Stenberg v. Carhart), rejecting sex- and race-based use of preemptory challenges (Edmonson v. Leesville Concrete Co., Inc.), affirmative action policies (Fisher v. University of Texas, Parents Involved in Community Schools v. Seattle School District No. 1, Rice v. Cayetano, Schuette v. Coalition to Defend Affirmative Action (BAMN), and gay rights (Lawerence v. Texas, U.S. v. Windsor, Obergefell v. Hodges).

Kennedy, however, also believes that dignity did not just apply to individuals, but also pertains to institutions. Just as dignity applies to personal autonomy, Kennedy believes that dignity could protect an inherent characteristic of an individual entity—like the states or the court system. For instance, Kennedy argues that states must retain their sovereignty and dignity in relationship to the federal government, such as in Alden v. Maine (1999). Or, Kennedy works to maintain the institutional dignity of the government’s structure. In other words, he seeks to preserve the respect for how government institutions work, such as in Degen v. U.S. (1996).

This concentrated exploration of dignity, what it means, and what it applies to was a calling card for Kennedy in these cases, particularly following O’Connor’s retirement. This is particularly true following his decision in Obergefell v. Hodges. Some coverage of the Obergefell decision, such as in the New York Times and in the Huffington Post, highlighted quotes from the majority and dissenting decisions with Kennedy’s line concerning equal dignity often grabbing top billing. Other coverage of the decision went further to explore Kennedy’s previous usage of dignity and what were the possible consequences and the legacy of dignity.

Despite this reputation, especially for issuing powerful, stirring moments in narrowly divided cases, Kennedy’s final term on the Court was largely unremarkable. As The New York Times notes, Kennedy did not join the liberal justices in a single close case this term. Kennedy routinely voted with the conservatives, and in a direction that favored the Trump administration’s positions in the high profile cases this term. Kennedy wrote six majority opinions this term, two of which were 5-4 rulings.

The seemingly most significant of these majority rulings came in the closely watched Masterpiece Cakeshop v. Colorado Civil Right Commission, itself a 7-2 ruling. As Daniel Tagliarina explains here and here, Kennedy’s opinion for the Court largely ignores the central constitutional questions in the case, leaves no clear understanding of the competing rights that where central to the case, and the other justices’ opinions only further confuse the Court’s position on the law.

This ultimately leaves Kennedy with a rather unremarkable term that does not live up to the hype around his reputation as an important swing justice and moderating voice on the Court. This is further evident in his concurring opinion in Trump v. Hawaii, the travel ban case. Kennedy joins Chief Justice Roberts’ majority opinion. In addition, Kennedy adds in his own concurring opinion. In three short paragraphs he adds that the Court is, basically, powerless to interfere with the president’s foreign affairs powers even when he is seemingly violating the First Amendment’s religious protections.

Kennedy does, however, refrains from clearly saying whether he believes the president is violating religious protections and acting with animus towards religion. This opinion is a brief statement of judicial powerlessness, even in the face of animus, as Justice Sotomayor documents at length in her dissent, that far exceeds that of what the Court found persuasive in Masterpiece Cakeshop.

Kennedy, known for pursuing concern for and protections of human dignity within the law ultimately ends his time on the Court by declaring the institution too powerless to stop a president who, by-and-large, has come to be defined by his utter lack of concern for the dignity of others. A president, as we noted earlier, Kennedy sided with again and again during his final term. For those who express concern for the Court’s loss of Kennedy’s “moderating” force, perhaps realizing that Kennedy is less betraying their hopes in him, and instead embracing who most of his record—especially this term—reveals him to be: yet another conservative Supreme Court justice on one of the most conservative Supreme Court’s the U.S. has ever had.

While his dignity jurisprudence is unlikely to last without him on the Court, to the fear of abortion supporters, those interested in preserving LGBTQ rights, and many others, his ending is perhaps far more in-line with his record than most Court commentators care to acknowledge. Thus, it is with a whimper that Kennedy exits (or perhaps is ushered from) the Court. No lauded “swings” to the left, no major opinions, just a confusing ruling in what should have been an important case, and a statement of powerlessness during a potential constitutional crisis. This seems less like the exit of a defender of dignity and rights, and more like someone too tired to try to talk about dignity in the current political climate.

Daniel Tagliarina is Assistant Professor of Government and Politics at Utica College.

Allyson Yankle is Visiting Assistant Professor of Political Science at Lycoming College.