Justice Anthony M. Kennedy’s retirement on July 31 has riled the left and thrilled the right. Despite his moderate conservative nature, for the past 12 years he has been the swing vote on the Supreme Court, especially in terms of abortion and gay rights. Conservatives see an opportunity to refashion constitutional law for the next several decades. Liberals despair and have promised a fight in the Senate, which must confirm all judicial nominations.
The Constitution authorizes the President to nominate and the Senate to confirm Supreme Court justices, like all federal judges. Most nominations are confirmed, 113 of them since 1789. The Senate has rejected only 12, although many more were withdrawn or not acted upon.
Kennedy took his seat in February 1988 after President Ronald Reagan nominated him and the Senate confirmed his nomination by a 97 to 0 vote. For most of those 30 years, he voted with the four conservative members of the court: Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch (and Antonin Scalia before him).
And yet, Kennedy carved out two areas of the law where he abandoned his conservative brethren to join the more liberal wing: Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.
On July 9, President Trump nominated Judge Brett Kavanaugh to succeed Justice Kennedy. It is difficult to predict how a new justice like Judge Kavanaugh will vote once on the court, but most do follow their political inclinations.
We should recall, however, that President Eisenhower once wrote that the two biggest mistakes he made as president were nominating Earl Warren and William Brennan to the Court. And John Paul Stevens and David Souter disappointed Presidents Gerald Ford and George H.W. Bush, respectively, when they increasingly voted with the liberal bloc. Whether a Justice Kavanaugh falls into this category remains for the future to bring.
One thing is certain. Judge Kavanaugh will probably be more conservative than Kennedy, especially on the issues he supported with his liberal colleagues. All could well have a serious impact on Vineyarders.
Here are a few.
Abortion rights. Most of the focus has been on abortion rights. Conservatives have long attempted to limit the impact or even overturn the 1973 landmark decision of Roe v. Wade, which recognizes a woman’s right to an abortion under certain conditions. In 1992, a case concerning several Pennsylvania restrictions on abortion came before the court. Planned Parenthood asked the justices to invalidate them as violations of the Roe decision.
Kennedy was initially inclined to join a bare majority to overrule Roe, but he changed his mind. Instead, he joined a plurality led by Justice O’Connor to uphold Roe’s central core: Abortion was guaranteed by the due process clause, but states may not restrict it if a regulation causes “an undue burden” on the woman seeking it. The court defined “undue burden” as “a substantial obstacle” that would hinder a woman from ending her pregnancy.
Two years ago, he joined four liberals to overturn a Texas requirement that doctors at abortion clinics have admitting privileges at local hospitals. Such a requirement posed an undue burden on women seeking an abortion.
And yet, Kennedy in 2007 provided the fifth vote and wrote the opinion in a case upholding a federal law that outlawed late-term abortions, that is, those in the third trimester of a pregnancy. He ruled that, as Congress noted when passing the law, such a procedure has a “disturbing similarity to the killing of a newborn infant,” and thus it had to be upheld because it drew “a bright line that clearly distinguishes abortion and infanticide.”
Judge Kavanaugh has not written an opinion precisely focusing on Roe, so we cannot predict with certainty whether he would vote to overrule it. Last October, however, he wrote a dissent in a case involving an undocumented teenager who wished to have an abortion. He argued that there was no undue burden on her if the procedure were delayed while the government sought a sponsor for her.
Gay rights. Kennedy has long been a staunch supporter of gay rights. A native Californian, he began his legal practice in Sacramento. He was recruited to teach night classes at the McGeorge School of Law by the then law school dean Gordon Schaber, who was, according to the New York Times, a closeted gay man. Kennedy, who grew up in an Irish-Catholic family and served as an altar boy, was likely aware of Schaber’s sexual orientation. That apparently did not matter to him. Kennedy taught at the school for 23 years, as the two men formed an intellectual bond and Schaber nurtured his career. He even promoted him as a Supreme Court nominee.
When Schaber died in 1997, Kennedy traveled to Sacramento to deliver his eulogy.
Fifteen years after he joined the court, Kennedy overruled a 1986 decision that criminalized sodomy when committed by a same-sex couple. In his opinion for the court, he held that adult gay people engaging in sexual acts in the privacy of their home cannot be imprisoned or fined.
Ten years later, in a 5-4 decision, he held that federal law cannot deny benefits to a married gay couple if the state in which they live recognized same-sex marriages. And most important, three years ago, again with a bare majority, he ruled with a flair that same-sex marriage was guaranteed because “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Judge Kavanaugh has not dealt with gay rights. It is impossible to determine how open he would be to overturning these standards for the gay and lesbian community.
Affirmative action. Justice Thurgood Marshall, one of the most vocal proponents of affirmative action for minority representation in various public institutions, once wrote that for centuries, affirmative action existed for white males. Now was the time, he asserted, to level the playing field: Affirmative action is a way to include rather than exclude minorities and women.
For most of his time on the court, Kennedy never voted to uphold an affirmative action program. He consistently joined his conservative colleagues to denounce the use of race or sex to promote increased representation, mainly in college and university admissions.
For the most part, Kennedy agreed with Chief Justice John Roberts, who wrote in 2007 that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In other words, Roberts, like most conservative justices, rejected Thurgood Marshall’s affirmative action distinction between inclusion versus exclusion of minorities and women.
But then, two years ago, Kennedy ruled for a bare majority that the University of Texas admissions program that takes race into consideration as one factor among many was constitutional under the 14th Amendment’s equal protection clause. Justice Samuel Alito was so stunned that he began his dissent by saying, “Something strange has happened since our prior decision in this case.”
Judge Kavanaugh has no record on affirmative action cases before the D.C. Court of Appeals, which deals primarily with administrative agencies and separation of powers issues. It is hardly a leap to suggest that he may well join those on the Supreme Court who wish to deny the use of race in determining access to college and university admissions, and racial balancing.
Severe punishment. More than any conservative on the Court, Kennedy has supported limits on the death penalty when it comes to the mentally disabled or adolescents who commit a capital crime before they are 18 years old. He has declined, however, to join his liberal colleagues in overturning the death penalty. But he has advocated prison and sentencing reform, including attacks on poor prison conditions.
Judge Kavanaugh has typically sided with the government over defendants on the D.C. Circuit. We can expect him to take a hard line on criminal justice as a member of the Supreme Court.
Business support. Five years ago, three legal scholars found that since 1946, five of the top 10 justices that supported business over plaintiffs served on the current court. The list included Anthony Kennedy (No. 6). The others were Chief Justice John Roberts (2) and Justices Samuel Alito (1), Clarence Thomas (5), and Antonin Scalia, who died in 2016 (10).
This trend was clear in the most recent Supreme Court term that ended on June 27. Kennedy voted with the majority to overturn a 41-year-old precedent that required non-union members to pay a fee to unions engaged in collective bargaining. They no longer must pay the fee. They can now be free riders, enjoying the benefits that a union bargained for on their behalf while not having to pay for the efforts.
To Kennedy, the requirement violated the First Amendment. Non-union members had been “forced” to engage in political activities that they might oppose, especially when a union endorsed a candidate running for office.
He also joined his conservative colleagues to require workers to abide by arbitration agreements when they have a dispute with their employer. They may not join in class actions once such an agreement is signed.
We can expect Judge Kavanaugh to align with the conservative wing of the court when faced with employee suits against employers. His record on the D.C. Circuit Court supports this assessment, especially in overturning rules and regulations of the Environmental Protection Agency.
These are only a very few issues that characterize Justice Kennedy’s jurisprudence and how his potential successor will approach them. There are of course many more. Without Kennedy on the court, we may well see some real change to constitutional guarantees within the very near future.
Jack Fruchtman, a seasonal Aquinnah resident, teaches constitutional law and politics at Maryland’s Towson University.