Justice Anthony Kennedy has consistently angered and surprised conservatives in his career serving on the Supreme Court since President Ronald Reagan nominated him in 1987. Kennedy quickly developed a reputation for being the “swing” vote on many landmark decisions, causing anxiety among conservatives who feared he would trample on the Constitution with his liberal interpretation. Still, despite some disappointments, in the last few terms the way Kennedy voted on many cases proved surprising. As he has championed the First Amendment over and over, especially lately, Kennedy earned a soft spot in the hearts of many a jurisprudence-minded observer of the Supreme Court.
[Michael Barone: The First Amendment was Justice Kennedy’s first priority]
To the contrary, Kennedy’s earlier decisions on the Supreme Court angered many right-leaning folks. His 1992 majority opinion, which he co-wrote with Justices Sandra Day O’Connor and David Souter, in Planned Parenthood v. Casey upheld abortion rights established in Roe v. Wade. Yet in 2007, he voted with the more conservative justices (5-4) and wrote the majority decision in Gonzales v. Carhart to uphold the nationwide ban on partial birth abortions to the immense relief of pro-life advocates.
Many conservatives struggled to rectify his defense of marriage equality with what seemed to be his defense of “life issues.” In 2013, Kennedy struck down part of the Defense of Marriage Act; in 2015, he wrote the majority opinion of the court in Obergefell v. Hodges, making same-sex marriage legal in all 50 states. I didn’t think conservatives would ever forgive Kennedy or recover from what many believed to be a gross overreach. (Remember the late Justice Antonin Scalia wrote of Kennedy’s opinion in a footnote, “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag.”)
However, peppered between some of these decisions, and certainly this last term demonstrates, Kennedy often wrote opinions or voted in such a way that surprised and delighted the Right. In his 2009 District of Columbia v. Heller, Kennedy joined the more conservative justices to find that a D.C. law which banned handguns violated the Second Amendment. This decision still infuriates much of the anti-gun Left.
In all of the Supreme Court’s decisions this last term that resulted in a 5-4 vote along ideological lines, Kennedy has sided with the conservatives. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, Kennedy wrote in defense of the Christian baker, Jack Phillips, and scolded the Colorado Civil Rights Commission. “To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical — something insubstantial and even insincere.” This opinion, so protective a person’s religious freedom, coming from the author of Obergefell, shocked conservatives and paved the way for NIFLA v. Becerra.
In NIFLA, the opinion just released this week, Kennedy concurred with the majority and lambasted the state of California for coercing a pregnancy center to advertise information about abortion clinics. He called the state akin to “authoritarian regimes” and wrote “[g]overnments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief.”
Conservatives may not always have agreed with Justice Anthony Kennedy’s decisions, but he did surprise on many occasions, and he served faithfully for 30 years.
Nicole Russell is a contributor to the Washington Examiner’s Beltway Confidential blog. She is a journalist in Washington, D.C., who previously worked in Republican politics in Minnesota. She was the 2010 recipient of the American Spectator’s Young Journalist Award.
