U.S. Supreme Justice Anthony Kennedy’s 30-year career on the Supreme Court was a historical accident. President Ronald Reagan’s first choice to replace retiring Justice Lewis Powell in 1987 was Judge Robert Bork, a cerebral but overly doctrinaire conservative; his nomination failed by a 58-to-42 vote in the Senate.
Reagan’s second pick, Judge Douglas Ginsberg, withdrew when it was revealed that he had smoked marijuana while a professor at Harvard Law School, a disqualifying sin in those days.
And so we got Kennedy, a mild-mannered conservative federal appeals court judge who had befriended Edwin Meese, who would be Reagan’s attorney general, when they both worked for Reagan’s gubernatorial administration in Sacramento. His retirement, announced Wednesday, opens a void at the center of the court that would be difficult to fill even by someone far more thoughtful than President Trump.
In many important and lasting ways, Kennedy’s lucky break was a lucky break for the country as well. No Supreme Court justice ever did more to bring the rights of gay and lesbian Americans under full constitutional protection.
In his majority opinion in Romer v. Evans, a landmark 1996 case striking down Colorado’s attempt to ban laws protecting gays and lesbians from discrimination, Kennedy not only forthrightly identified the “animus” at the root of the particular law in question, but also declared it an impermissible basis of any such law.
Romer proved to be just the beginning of the progress Kennedy would spearhead, in cases such as Lawrence v. Texas, which struck down all state anti-sodomy statutes in 2003, and, ultimately, the court’s 2015 ruling, Obergefell v. Hodges, also written by Kennedy, establishing marriage equality.
“No longer may this liberty be denied to them,” he wrote, in words that will largely define his legacy. Kennedy’s opinions in these cases not only ratified the gay rights revolution but also accelerated it.
Kennedy cast the fifth and deciding vote in Obergefell, as he did in many cases over the past 12 years on a court increasingly and unsettlingly divided between left and right; prior to that, he and Justice Sandra Day O’Connor shared the “swing voter” role on the court.
Together, for example, Kennedy and O’ Connor helped uphold abortion rights in the 1992 case, Planned Parenthood v. Casey. Bork never would have done that; the preservation of a woman’s right to autonomy in reproduction is, therefore, also a positive part of Kennedy’s legacy. Though a strong critic of affirmative action in university admissions, Kennedy voted to keep it alive in 2016.
Kennedy tended to rule sweepingly in favor of whatever side he ultimately came down on. If he was a centrist, it was only on average. The same justice who cast a deciding vote in 2005 to abolish the death penalty for offenders under 18, after voting 16 years earlier to uphold it, and who voted to abolish the death penalty for non-homicide crimes, also voted to uphold California’s draconian “three strikes and you’re out” law, which put people behind bars for 25 years to life if they commit a third felony, even a nonviolent one.
Thereafter, he cast the deciding vote in favor of a lower-court ruling requiring California to reduce prison overcrowding.
The same ferocious sense of liberty that fueled Kennedy’s gay rights jurisprudence and his stalwart defense of free speech could lead him astray at times. The court’s reckless embrace of a constitutional right to individual gun ownership had Kennedy’s full support. Citizens United, the court’s ill-considered creation of corporate free-speech rights in political donations, was his handiwork. In 2000, Kennedy was downright obscure, casting a fifth vote to cut short the recount of Florida presidential ballots on a murky theory of equal protection in Bush v. Gore.
That decision, which propelled his party’s candidate to the White House, exposed Kennedy to accusations of partisanship, which were unfair. His characteristic failing was different: the occasional inability to know his own mind, the downside of the openness and flexibility that generally served him well. He hated the term “swing voter” but showed in word and deed that he accepted the responsibility that came with it, much as the swing justice he succeeded, Powell, also did. It was, specifically, the responsibility to help keep the court, and the country, on an even keel.
Trump will be eager to use this pick to wrench the court to the right. A Senate battle possibly bloodier than that over the Bork nomination awaits. If it’s extra bloody because of justifiable Democratic ire over Senate Republican Majority Leader Mitch McConnell’s refusal to give President Obama’s choice a vote in 2016, no one should be surprised. For now, it’s enough to note that we could do a great deal worse than another Kennedy on the Supreme Court. He was, thank goodness, a disappointment to doctrinaire people in his own party, and, indeed, to doctrinaire people of all stripes.
This editorial was first published in The Washington Post.