Anthony Kennedy’s Liberal Enablers

What accounts for Anthony Kennedy’s undeserved reputation as a moderate? Blame liberals’ longtime infatuation with establishment conservatives.

The official Supreme Court portrait of Anthony Kennedy. Wikimedia Commons

Just a few months ago, the New York Times published an editorial literally pleading with eighty-one-year-old Supreme Court justice Anthony Kennedy not to retire. Flattering him as the Court’s “most powerful member” whose vote, “more than that of any other justice, has delivered landmark legal victories for Americans,” the Times appealed to Kennedy to consider both his legacy and the future of the Court itself, and deny Trump another Supreme Court appointment.

“We can’t know what is in your heart, Your Honor, but we do know what your departure right now would mean for the court, and for the nation,” wrote the board. “It would not be good.”

It should have worked. After all, as the Times wrote in 1987 when he was first nominated, Kennedy isn’t some kind of right-wing ideologue; he could be reasoned with! He was “quiet,” “pragmatic,” and “open to persuasion.”

As we all know by now, the Times’s plea didn’t work. Kennedy announced his retirement with the full knowledge that doing so at this particular time would give Trump and the rightist forces around him their best opportunity to install an extremist in the mold of Neil Gorsuch on the bench. What gives?

Part of the problem stems from an idealized view of Kennedy himself, a common feature of his press coverage that tends to ignore some inconvenient facts. For one, there’s Kennedy’s extensive ties to the Trump family. As the Financial Times reported last year, Kennedy’s son was one of Trump’s “most trusted associates” at Deutsche Bank — an institution with which Trump has had a close financial relationship for decades — and Kennedy’s children are friendly with both Trump’s kids and his adviser Peter Thiel. According to Politico, in some legal circles the nomination of Gorsuch, one of Kennedy’s former clerks, was viewed as “an olive branch to Kennedy” that signaled “his seat would be in reliable presidential hands.”

Then there’s Kennedy’s actual history on the bench. While Kennedy is correctly described in today’s news reports as the Court’s “centrist” swing vote, that designation tells you little about his actual positions. Kennedy is only in that spot because of how far to the right the Court has been since the 1980s.

While Kennedy has no doubt moved somewhat left over the past couple of decades — his defenders typically point to his votes in favor of marriage equality, keeping affirmative action in public universities, and his nominal support for Roe v. Wade — what’s forgotten today is that he was instrumental to the sweeping shift to the right that the Court undertook at the behest of Ronald Reagan. It was only thanks to Kennedy that the Rehnquist Court succeeded in reversing decades of progress on civil rights and facilitating the gradual erosion of abortion rights.

“Bork Without a Beard”

Reagan originally nominated Kennedy as an inoffensive alternative to Robert Bork, the far-right judge and legal scholar who became a symbol of Reagan’s radical philosophy. After controversy sank Bork’s nomination, and his equally controversial replacement flamed out after admitting to smoking pot, the quiet, seemingly temperate Kennedy was seen as a sure thing.

Like Gorsuch, not much was known about Kennedy at the time. He left no trail of speeches or law review articles, and he wasn’t a movement conservative. Only a few notable things came up: his decision to strike down a pay equity ruling for women, his 1980 decision to uphold the constitutionality of the Navy’s policy of firing homosexuals, his creation of the “exclusionary rule” (which let police use illegally seized evidence in trial as long as they illegally seized it in “good faith”), and his 1976 ruling that “testers” — people posing as home buyers to expose racist practices — couldn’t bring housing discrimination lawsuits, to name a few.

Although these were acknowledged as red flags at the time, Kennedy was hardly viewed as a Bork-style right-wing firebrand. Even as civil rights advocates raised concerns, Kennedy became someone acceptable to both liberals and the center merely by virtue of not being Bork. Conservatives huffed over his nomination; liberal groups that had mounted a major offensive against Bork stayed silent; and major newspapers published hagiographic pieces that assured readers he was a “restrained pragmatist” who has no “desire to change the modern course of constitutional law” and would “respect precedent.” Liberal law professor Laurence Tribe, who had helped sink Bork’s nomination, testified in his support. Kennedy sailed through the confirmation process.

It didn’t quite turn out that way, however. Kennedy’s confirmation finally gave the Court’s conservatives — Reagan had by then chosen no less than five of its justices — the majority they needed to start whittling away at the advances made by the Warren and Burger courts.

One of the first things Kennedy did on the bench was vote with four other conservative justices to review a 1976 decision that had opened the floodgates to a broad range of discrimination suits — a decision that, ironically, Bork had actually argued in favor of while solicitor general. What was unusual was that, in a departure from standard practice, no lawyer on either side had asked the Court to review the ruling; the conservatives simply decided to take advantage of the Court’s sudden realignment. Thurgood Marshall sharply dissented.

More than a year later, the Court elected not to overturn the 1976 ruling. What it did instead was rule that racist harassment didn’t qualify as illegal discrimination, chipping away at civil rights protections while not triggering wider outrage — an approach that would become a common strategy for the Court.

Other highlights of his first year included: upholding the use of racketeering laws to fight the scourge of pornography; ruling to protect government contractors from being sued for faulty products (in the case in question, a man had died after his helicopter crashed and the escape hatch, which swung out instead of in, couldn’t open under water); and voting that employers did not have to compensate workers for past discrimination over pension benefits because the discrimination had taken place before the adoption of legislation stopping such practices.

He also allowed the drug-testing of federal employees, permitted police to destroy evidence (again, as long as it was in “good faith”), and deemed that law enforcement could safely search for drugs without a warrant by piloting a low-flying helicopter and peeking into people’s yards. In a sign of things to come, he struck down a local law that required 30 percent of Richmond’s city construction funds to go to minority-owned firms, and wrote that he would consider abolishing affirmative action entirely in the future.

“Kennedy is as conservative as any justice nominated by President Ronald Reagan,” wrote the Washington Post in April 1989. “At least as conservative as Bork was expected to be, Kennedy has moved the Court’s center much farther to the right than observers on either side of the ideological divide expected.” He had sided with Rehnquist and Scalia 92 percent of the time. Elated conservatives cheered it as poetic justice for Bork’s defeat, and celebrated that Kennedy was “marching in step” with the Court’s most conservative justices.

It was during his second year that Kennedy and the rest of the Court’s conservatives really started taking aim at civil rights. In a 5-4 decision, they ruled that workers had to prove intentional racist bias to bring an employment discrimination lawsuit, rather than just showing statistics that demonstrated it, overturning an earlier ruling that an NAACP lawyer had called “the most important decision interpreting the fair employment laws.” The Chamber of Commerce said it was “a very good opinion for business” that gave them “more than we hoped for.”

Another identical 5-4 majority narrowed affirmative action and opened the door to a flood of right-wing legal challenges. Kennedy also ruled that executing developmentally disabled murderers and kids who were sixteen or seventeen years old wasn’t unconstitutional. Conservative jurist Bruce Fein gushed that Kennedy had “made this a Reagan Court with a Reagan philosophy in virtually all areas,” while Laurence Tribe called him “Bork without a beard.”

Kennedy didn’t always win. He dissented from a decision that upheld federal programs meant to expand the number of broadcast licenses held by minorities and women, calling it a policy of “racial separation” that created “separate but equal facilities” and comparing it to South African apartheid. He voted against applying the Voting Rights Act to the election of state and local judges. He also voted to allow companies to avoid hiring women for certain jobs on the grounds that it would be a risk to their fetuses.

But for the most part, Kennedy and the other conservative justices — soon fortified by Clarence Thomas’s arrival on the Court — continued rolling back civil rights protections at a steady clip. Kennedy wrote a decision that sharply limited prisoners’ right to habeas corpus petitions. He allowed an all-white county council in rural Alabama to simply take power away from the first black member elected to it.

He also wrote a majority opinion that held that federal courts couldn’t force integration when “the racial imbalance is the product of residential patterns that the officials can’t control,” writing that courts had a “duty” to “return the operations and control of schools to local authorities.” It was a decision that, as observers noted at the time, sharply undermined Brown v. Board of Education, the landmark civil rights case that Kennedy’s colleague, Thurgood Marshall, had been instrumental in winning.

“Instead of the ‘judicial restraint’ that Republicans have long yearned for,” wrote the Times, “this new majority shows contempt for precedent, disrespect for Congress and indifference even to the arguments of this conservative Administration.”

After all this, Kennedy paid tribute to Marshall shortly before the latter’s death by quoting Toussaint L’Ouverture. Kennedy, who had rolled back civil rights advances and irreparably dented Marshall’s greatest legal achievement, coopted the words of the leader of a slave revolution.

A Reputational Shift

Perhaps the key turning point for Kennedy’s reputation was his ruling on the biggest abortion case of his early Court career.

Kennedy had already ruled on Roe v. Wade in 1989, when he and the other conservative justices upheld the decision while bitterly criticizing it. “Technically, the decision survives, but it survives on borrowed time,” wrote the Washington Post. Conservative jurist Bruce Fein cheered that the court majority had “cast aspersions” on the Roe decision’s legal reasoning and “positioned itself for a second assault.”

It was in 1992 that the Court got another chance to reverse Roe, in Planned Parenthood v. Casey. Many predicted its doom in the run-up to the decision. But in a shock twist, Kennedy voted to affirm Roe, while also permitting a host of restrictions on women’s access to abortion, provided that those restrictions didn’t create an “undue burden.” What qualified as an “undue burden” remained to be defined.

That decision set up the status quo that exists today, avoiding the mass outrage of overturning Roe while permitting states and localities to find ever more clever ways to effectively eliminate abortion clinics. The decision was a landmark blow to abortion rights. And yet it had the curious effect of almost entirely rehabilitating Kennedy’s image.

Conservatives who only a few years before had laughed about how they hoodwinked liberals into confirming the next Bork publicly fumed again over Kennedy’s betrayal. They used Kennedy’s ruling as evidence that conservative justices weren’t picked on a litmus test. One charged that “the Blackmunization of Anthony Kennedy is complete,” referring to Nixon’s appointee who had shifted to a more liberal stance after his confirmation. (This despite Kennedy’s conservatism on virtually everything else.)

Meanwhile, liberal groups used Casey to justify their prior complacency on Kennedy. “What this does show is that there’s a difference between Justice Kennedy and Robert Bork,” said Judith Lichtman of the Women’s Legal Defense Fund. “For those people who doubted our opposition to Robert Bork, this is a clear indication of how right we were to oppose Bork. Justice Kennedy is not Robert Bork.”

“The verdict is now in” on whether Kennedy was another Bork, wrote the Times in 1992. The paper decided that Bork’s criticism of two decisions that Kennedy had joined (including Casey) closed the book.

Only a week after this supposed liberal triumph, Kennedy and the Court denied review to an abortion case with a single sentence, effectively facilitating the spread of state abortion restrictions throughout the country. A 1993 analysis by the Wall Street Journal found that Kennedy voted with Rehnquist, the conservative leader of the right-wing court, 87 percent of the time. In this, he was second only to Thomas and Scalia, who agreed 89 percent of the time.

The Mythical Kennedy

Any discussion of Kennedy’s legacy that omits the years he spent shredding precedent and overturning civil rights decisions is incomplete. Kennedy no doubt moved left over time, and had a hand in some landmark victories, particularly gay rights. That has played a large role in the myth-making that surrounds him today.

But look at some of the other recent decisions he’s had a hand in. He authored the Citizens United decision. In 2013, he helped further cripple the Voting Rights Act, part of a long history of scuttling civil rights protections. Just days ago he upheld Trump’s travel ban, while writing an opinion weakly denouncing the very thing he voted for, a favorite tactic of supposed Resisters.

Whoever Trump chooses to replace Kennedy will no doubt be far worse, but in many ways Kennedy’s story isn’t really about whether he was good or bad. It’s about centrists’ and liberals’ misplaced faith in an establishment conservatism — from Colin Powell to Olympia Snowe — that virulently opposes what they themselves claim to stand for, and that no longer cares for their appeals to reason, if it ever did. It’s important to remember that the widespread portrait of Kennedy as a restrained moderate, while slightly more appropriate now than in the past, was originally birthed at a time when Kennedy was already fully engaged in the process of undoing key liberal victories from decades prior.

Senator Richard Blumenthal recently said that “what’s needed is an independent, open-minded, fair jurist in the mold of Justice Kennedy himself.” For the sake of America’s most vulnerable, let’s hope neither Republicans nor Democrats manage to confirm whoever that is.