Anthony Kennedy’s Legacy: a Split Decision | Center for Equal Opportunity

I wrote the piece below (published in The Weekly Standard) when Justice Kennedy stepped down. I discussed (briefly) the Justice’s record over his 30 years on the Supreme Court. Here I would add that on race-based affirmative action in admissions, an issue we closely follow here at CEO, Kennedy could disappoint even while providing reasons to be optimistic. Consider his opinion for the Court two years ago in the University of Texas case upholding a racial admissions policy that should have been struck down. The ruling, however, was narrow and may have little precedential value. And Kennedy was clear about the university’s ongoing duty to minimize the use of race in admissions.

The Kennedy record to one side, it’s worth noting that the legal foundations of racial preferences continue to crumble—as the precocious Brett Kavanaugh, who would be the new Justice, surely knows. Perhaps he’ll write the opinion that finally brings to an end racial discrimination in admissions.

Anthony Kennedy was not a great Supreme Court justice, but not a bad one either. If you were to rank the 113 justices so far, he would be somewhere in the middle, probably the upper middle. On the Supreme Court for 30 years, which is a long time as the lives of justices go, Kennedy, who will be 82 this month, was not the great thinker or writer Justice Scalia was, yet he was learned in the law and generally competent in deciding cases and controversies.

A federal appeals court judge in California, Kennedy filled the seat vacated by Justice Lewis Powell in 1987. He was not President Ronald Reagan’s first choice. Robert Bork was, and the battle over his rejected nomination became an ongoing war of sorts over judicial selection for the Supreme Court as well as for the courts of appeals—though not before the Democratic Senate had voted 97-0 to confirm Kennedy. His judicial qualities impressed senators on both sides of the aisle.

The new justice knuckled down and went to work. Early on, he voted to narrow the use of race in affirmative action programs; to allow for more accommodation of religion in public life; and to find flag desecration statutes in violation of the First Amendment’s free speech provision.

As the years passed, Kennedy’s vote came to be coveted by his colleagues in cases of often intense public interest that seemingly might have gone either way. Here, too, Kennedy was in the middle—the middle of the Court, occupying its ideological and tactical center. He embraced no comprehensive theory of interpretation, though he sometimes evinced an outsized view of the judge’s role. If he was a judicial conservative, he was so in terms of results. He affirmed gun and property rights, free exercise and free speech rights, and the constitutionality of school voucher programs.

Liberals did not like his work in Citizens United, in which he wrote the Court’s 5-4 opinion protecting corporate speech while also striking down restrictions on the amount of money companies may spend to support political candidates. But they liked his effort to limit the use of the death penalty.

And then there were his decisions on abortion and same-sex marriage. In Kennedy’s fourth year on the job, he declined to overrule the right to abortion that the Court had created in 1973 in Roe v. Wade. Twenty-three years later, the Court, by a 5-4 vote, with Justice Kennedy writing for the majority in Obergefell v. Hodges, again created an ostensible constitutional right: that of same-sex marriage. That Kennedy, a justice appointed by Reagan, was on the judicial left on these crucial social issues was not expected by conservatives. Kennedy had “grown” on the job, it was said derisively, and maybe he had.

It is not fair, however, to judge Kennedy only in terms of his positions on abortion and homosexual rights, important as they are. He had a strong interest in the structural Constitution, meaning the Constitution as understood in terms of its structural principles, those of federalism and separation of powers, which by design protect liberty. By federalism, Kennedy meant the allocation of powers between the federal government and the states, and by separation of powers, the allocation of powers among the three departments of the federal government.

The latter allocation of power, Kennedy emphasized, included an allocation between Congress and the executive branch. It is power that was used to establish the modern administrative state—whether lawfully or not remains an abiding question. Here is how Kennedy raised it: “What kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?” With Kennedy leaving the Court, the questions he pressed about the structural Constitution and its allocations of power and protections of liberty will remain for others to take up. A Kennedy legacy, if you like.

President Trump has the exclusive power to nominate Kennedy’s successor, and, as President Obama’s failure in 2016 to fill Justice Scalia’s seat revealed, the Senate is under no obligation even to have a cup of coffee with the person Trump sends to them.

The Republican Senate, however, is not going to block the nomination of a Republican president, provided of course that all is well with the president’s choice. Nor are the Senate Democrats in a position to filibuster Trump’s nominee since the Senate changed its procedures so that only a simple majority is needed to confirm.

If President Trump chooses a nominee soon—by the weekend would be best—the Senate would have time to confirm the person before the midterm elections this fall. If the individual is not confirmed by then and the Senate changes hands, the Democratic majority can be expected to follow the Republican precedent of 2016 and deny Trump his choice.

Fortunately for the Trump administration, it is prepared to make the nomination. It still has that list of more than 20 prospects for the Court, all of whom have been vetted and are sound in terms of judicial philosophy. If Trump makes the right selection, the Court will have five bona fide judicial conservatives, a goal of conservatives for the past half-century, before there ever was a Justice Kennedy.

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