By Frank J. Colucci, author of Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty
By announcing his retirement last week after 30 years on the U.S. Supreme Court, Justice Anthony M. Kennedy assures two aspects of his legacy:
(1) His conservative precedents will be more secure than his liberal ones.
(2) A Senate confirmation process as politically and constitutionally consequential as the one that resulted in his nomination.
As I demonstrate in my book on his jurisprudence, Kennedy exercises a broad conception of judicial power to protect ideals of liberty. By embracing expansive conceptions of human dignity and free speech as well the judicial role to enforce it, he has been the justice most likely to strike state and local laws for violating the Constitution. On a Court divided for most of the past two decades between blocs of four more liberal and four more conservative justices, Kennedy’s assertiveness has held the balance. “The enforcement power of the judiciary,” he said in his 1987 confirmation hearings, “is to ensure that the word liberty is given its full and necessary meaning.”
Nominated to the Court by Republican Ronald W. Reagan, Kennedy has drawn charges of betrayal from conservatives for critical votes on high-profile constitutional issues. He wrote opinions for five-justice majorities reaffirming a woman’s right to abortion in Planned Parenthood v. Casey (1992) and Whole Women’s Health v. Hellerstadt (2016). In other 5-4 decisions he voted to strike official prayer in public schools, limit presidential power to hold suspected terrorists, affirm rights to political dissent, and narrow the classes of defendants eligible for the death penalty. Kennedy also wrote several opinions, culminating in Obergefell v. Hodges (2015) which found a constitutional right to same-sex marriage.
Even with these prominent liberal departures, Kennedy’s essential conception of liberty and his overall record remains predominately conservative. He consistently joined majorities on the Court to limit federal power to regulate commerce and enforce voting rights, to uphold law enforcement, and to expand free speech protections to commercial and corporate speakers such as in Citizens United v. FEC (2010). Kennedy joined opinions advancing claims of religious liberty, upholding displays of the Ten Commandments on government property and prayer at public meetings as well as concurring in Hobby Lobby v. Burwell (2014). And of course Kennedy joined the 5-4 majority in Bush v. Gore that first stayed then ended the Florida recount and effectively concluded the 2000 presidential election.
Kennedy’s votes during the recently concluded term confirm his fundamental conservatism. His majority opinion in the Masterpiece Cakeshop case criticized officials of the Colorado Civil Rights Commission for statements that violated first amendment rights to religious neutrality from government. He explicitly called for greater First Amendment consideration for compelled speech. While “the free speech aspect of this case is difficult,” he writes, it “is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.” Kennedy also dissented in Carpenter v. U.S, where in a 5-4 opinion for the Court Chief Justice John Roberts extended Fourth Amendment protections to records of cell phone locations. Kennedy argued that these location records belong to the cell phone company and not the individual. Had Kennedy’s view prevailed, law enforcement would not be required to obtain a warrant to obtain from a provider 127 days of a person’s cell phone location data.
Kennedy’s last actions on the Court reiterated his fear of government compelling speech and expression contrary to conscience. His last separate opinion in National Institute of Family and Life Advocates v. Becerra—striking California regulations requiring facilities that offer pregnancy –related services to provide women information about obtaining an abortion—focuses on fears of compelled speech. “Governments must not be allowed to force persons to express a message contrary to their deepest convictions,” he writes. California’s law to the contrary “imperils those liberties.” In his final morning on the bench, Kennedy joined the majority in Janus v. AFSCME finding requirements that public employees either join a union or pay agency fees violate individual rights to free speech on matters of political concern.
One jarring late departure, however, can be found in Kennedy’s concurring opinion in Trump v. Hawaii. Kennedy states “it is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs” and concludes “an anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”
Yet Kennedy joined the majority in allowing the president’s ban on entry to travelers from several nations to remain in force. He concedes “the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.” Kennedy’s statement of judicial weakness in the travel ban case contrasts starkly with the confidence about the meaning of liberty and the obligation of courts to enforce it he expressed at his confirmation.
Kennedy’s recent opinions and decision to retire at this time have the effect of securing the conservative aspects of his legacy while leaving unsettled the 5-4 liberal precedents he wrote and joined. His former clerk, Neil Gorsuch, sits on the Court as Trump’s first appointment. Replacement by a Trump nominee would secure conservative victories of the current Term and provide a likely fifth vote to overturn liberal 5-4 landmarks that Kennedy wrote, joined, or affirmed.
The current judicial nomination process invites comparisons with the confirmation battle over Robert Bork that led to Kennedy’s elevation to the Court. When Lewis Powell announced his retirement in 1987, Senate Democrats led by Edward Kennedy attacked Bork’s nomination for fear his vote on the Court would overturn Roe v. Wade, limit civil rights and labor protections, and roll back the liberal precedents of the Warren Court. These hearings took place following a summer of Iran-Contra hearings and with a presidential job approval rating under 50 percent.
Bork’s nomination was defeated 58-42 with six moderate Republicans (Arlen Spector, John Chaffee, Lowell Weicker, Bob Packwood, Robert Warner and Robert Stafford) joining 52 Democrats voting no. Only after Bork’s rejection and the withdrawal of Douglas Ginsburg’s nomination was Kennedy tapped as a third choice and eventually confirmed by the Senate in February 1988 by a 97-0 vote.
Democrats argue for delaying confirmation hearings for Trump’s nominee until after the upcoming midterm elections, but one stark political difference exists between the confirmation process that produced Kennedy and the one that will vote on his successor. Democrats won the Senate in the 1986 midterm elections and had enough votes to control the chamber even without Republican defections. Today Republicans hold a slim majority in the Senate, and in confirming Gorsuch’s last year the majority has eliminated the filibuster for all federal judicial nominations. Democrats need Republican votes to defeat a Trump nominee—just as they needed Republican votes last year to prevent legislation that would have gutted the Affordable Care Act (which they got) and to stop the tax bill (which they did not).
While Justices have life tenure, the timing of Kennedy’s retirement reaffirms that the Supreme Court follows the election returns. In 1987, Democrats alone could stop Bork. Going forward, defeating any Trump nominee and salvaging any of Kennedy’s liberal legacy requires action from Republicans in the Senate or on the current Court.
Frank J. Colucci is associate professor of political science at Purdue University Northwest and author of Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty