It became official just after lunchtime on Wednesday, just after the Supreme Court announced its final decisions of the term and went into recess. Justice Anthony Kennedy, the 104th person to serve on the Court, is retiring, effective just after his 82nd birthday next month, after 30 years of service.
Justice Kennedy’s decision, announced in a two-paragraph letter to President Trump, has been predicted — and both eagerly anticipated and dreaded — for years now. He has been the swing vote in several noteworthy — for some, notorious — cases going back to the early 1990s, and in many has been the author of the opinion of the court.
Appointed by President Ronald Reagan, after two earlier nominees failed to be confirmed, Kennedy has long been feted by many liberals for these stands. Since the early 1990s, he has stood against repealing the 1973 Roe v. Wade decision legalizing abortion. Starting with his decision overturning a sodomy conviction in 2003, he has opposed discrimination against homosexuals, and was the author of Obergefell v. Hodges, the 2015 decision that legalized same-sex marriage.
[Opinion: Justice Anthony Kennedy’s retirement is an answer to prayer for evangelicals]
Kennedy joined mostly Democratic-appointed colleagues in taking what were considered liberal stands on other issues as well, including the death penalty for young offenders, judicial review for Guantanamo detainees, and state laws attempting to strengthen or supplement federal enforcement of immigration laws.
On these conservative legal scholars looked askance. Some ridiculed Kennedy’s flowery language in decisions like Obergefell. Some classed him with other Republican-appointed justices who sided regularly with liberals.
But that’s an overstatement. Justice Kennedy came out on the same side as Republican-appointed colleagues on the Second Amendment, on partial-birth abortion bans, on the unconstitutionality of bans on political speech, on subjecting states to special voting rights scrutiny based on evidence from 1964 and 1972. In legislative redistricting cases, he professed to see no neutral principle distinguishing plans that were unconstitutionally partisan from those who weren’t. Any verbal formula, he apparently believed, would just leave judges free to rule for their partisan friends.
And in every one of the past year’s 19 cases decided in 5-4 votes, he came out against the four Democratic-appointed justices.
In my view it makes sense to see Justice Kennedy not so much as a liberal warrior in our culture wars but as a judge who placed an especially high value on the First Amendment freedom of speech. He believed that people should be free to engage in gay sex and that organizations should be free to engage in political speech.
His concern about freedoms of expression characterized his most recent decisions. He scrutinized government efforts to force public employees to pay for political speech they opposed (Janus v. AFSCME) and to force a Christian baker to custom-design a cake for a same-sex marriage (Masterpiece Cakeshop v. Colorado Civil Rights Commission).
This led to legal scholar Rick Hasen’s speculation about retirement to call his recent decisions “final abdications” indicating “a depressing kind of defeatism” and to predict, accurately, his decision to retire. He evidently sees Justice Kennedy as a committed culture warrior for the Left.
But language in some of his most controversial opinions shows not a desire for one side’s total victory as for both side’s friendly accommodation of one another.
In Obergefell, Justice Kennedy took care to recognize that “religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”
In Masterpiece Cakeshop, Justice Kennedy followed through on this, writing, “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 sounds not so much like legal argumentation as like a plea that combatants in the culture war should show respect — even friendship — for each other.
The Senate probably will “confirm Justice Kennedy’s successor this fall,” as Majority Leader Mitch McConnell, R-Ky., quickly promised, despite hysterical predictions that abortion will be criminalized and same-sex marriage abolished.
But Justice Kennedy’s central legacy is his firm defense of the First Amendment. Against California’s claim that its law requiring pro-life pregnancy counselors to promote abortions is “forward-looking,” Kennedy wrote, “It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it.”
First things first.
