One of my favorite genres of writing is the charitable obituary written about a political opponent. My remembrance of Judge Robert Bork, the conservative icon President Ronald Reagan tried and failed to put on the Supreme Court, highlighted his more admirable calls for judicial restraint. My obituary of Justice Antonin Scalia was titled “In Praise of Scalia.”
I want to establish these facts up front as I begin my obituary of Justice Anthony Kennedy’s judicial career, because what follows will not be especially charitable. Justice Kennedy was a Cadillac’s intellect in a Lamborghini’s job. His writing ranged from needlessly flowery to completely incoherent. And, while his views sometimes placed him to the left of men like Scalia and Bork, his “liberal” opinions were frequently his most incomprehensible.
Kennedy could have been a perfectly adequate lower court judge, but he was in over his head at the Supreme Court. And, for that reason, his most celebrated opinions will be very easy to dismantle.
Most of the time, of course, Kennedy was also no friend to liberals. He authored the Court’s Citizens United decision, joined its decision hobbling much of the Voting Rights Act, and he voted to repeal the entire Affordable Care Act. The entire presidency of George W. Bush might have been avoided but for Kennedy’s vote in Bush v. Gore. And, in a moment when liberal democracy itself is threatened by an authoritarian president, Kennedy decided that it would be a good idea to give that president another seat on the Supreme Court.
And Kennedy’s inadequacies were most visibly on display when he crossed over to join the Court’s liberal bloc.
A fortress of sand
Consider Lawrence v. Texas, the landmark gay rights decision establishing that it is none of the government’s damn business who consenting adults have sex with or how they do it.
Lawrence sits at the heart of what may be the most difficult question in American constitutional law. The Constitution unambiguously states that there are certain rights that are both protected by our founding document and left unstated. For more than a century, the Supreme Court has struggled to figure out which of these unenumerated rights deserve protection, sometimes with disastrous results.
Justice Scalia’s answer to this dilemma is that the United States is a democratic republic, so courts should be extraordinarily reluctant to displace the judgment of elected lawmakers by recognizing a new unenumerated right. The Texas anti-sodomy law at issue in Lawrence, Scalia wrote
is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.
This is a powerful argument. It appeals to one of America’s foundational virtues — democracy. And it demands humility in the face of a particularly daunting challenge. Why should the one unelected branch of government get to decide such fundamental questions when the Constitution provides them with virtually no guidance on how to do so?
There are also powerful rebuttals to Scalia. There are sharp, crisp, tightly woven arguments — arguments that are firmly rooted in precedent and in constitutional text — that Kennedy could have deployed against Scalia in his opinion for the Court in Lawrence.
When a group has historically experienced discrimination that bears “no relation to ability to perform or contribute to society,” courts afford that group heightened protection under the Constitution’s promise that no one may be denied “the equal protection of the laws.” Kennedy could have avoided the thicket of unenumerated rights altogether, and instead written a fairly conventional opinion holding that judges must treat discrimination on the basis of sexual orientation with skepticism.
Instead, he wrote an opinion that was constructed largely from discarded Age of Aquarius lyrics. Kennedy’s opinion in Lawrence teaches us that “when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” and that “as the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
As I wrote in 2015, Lawrence does “not so much revise legal doctrine as . . . skip through the wilderness of constitutional law, blithely ignoring the paths laid by more thoughtful travelers.”
In fairness, there’s more to Kennedy’s Lawrence opinion than airy-fairy paeans to freedom and liberty. Much of his opinion, for example, explains that anti-sodomy laws are rarely enforced and increasing uncommon. But so what? Laws banning golf are even more uncommon, but that doesn’t mean that there is a constitutionally protected right to play golf.
The point isn’t that Scalia was right, and that Kennedy was wrong, in Lawrence. To the contrary, the point is that Lawrence concerned a matter of such fundamental importance — the basic humanity of millions of people — that it demanded a rigorous, textually rooted, conventional legal defense. Instead, Kennedy placed gay people’s right to live openly in a fortress made of sand.
And that will make it much easier for the Court’s new majority to blow this right away.
Begging for scraps
Lawrence is hardly an isolated incident. Take 1992’s Planned Parenthood v. Casey, where the conservative Kennedy surprised the legal community by voting to retain the “essential holding” of Roe v. Wade.
There, in a passage that was almost certainly written by Kennedy (Casey was coauthored by three justices), we learn that “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.” Casey teaches that “abortion is a unique act,” and that “the destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.”
As with Lawrence, the problem isn’t that Casey announces the wrong legal rule — that abortion is protected by the Constitution. The problem is that its hippie-dippie, decidedly unlegal language renders its rule vulnerable. Justice Scalia had a point when he mocked Kennedy’s noxiously purple prose as Casey’s “famed sweet-mystery-of-life passage.”
And Casey also fits into another common pattern with Justice Kennedy’s opinions. When Kennedy cares about an issue, he can demand that the law remake itself overnight in his image. Just think about his vote to repeal the entire Affordable Care Act. Or his Citizens United opinion which, as the New Yorker’s Jeffrey Toobin reported, came about after Kennedy rejected Chief Justice Roberts’ incremental, more modest approach to the case.
Yet, when Kennedy cast his lot with the Court’s liberals, he was typically far more parsimonious. Casey purported to preserve Roe, for example, but it stripped abortion of its status as a fundamental right and applied a vague “undue burden” standard that gave very little guidance to lower court judges regarding when an abortion restriction violated the Constitution. Many judges who oppose Roe took this vague standard as a license to unwind the right to an abortion.
Similarly, when Kennedy cast a surprise vote to preserve affirmative action in 2016’s Fisher v. University of Texas at Austin, liberals were elated. Abigail Fisher, the mediocre applicant turned anti-affirmative action plaintiff, was christened #BeckyWithTheBadGrades.
Yet, while Kennedy’s opinion in Fisher kept race-conscious admissions practices nominally alive, it left them so shrunken and vulnerable that they can barely draw breath. The Texas admissions program at issue in Fisher was already a very marginal policy — as Justice Ruth Bader Ginsburg explained in an earlier round of the Fisher litigation, race was only a “factor of a factor of a factor of a factor” in the university’s decision who to admit. It’s unlikely that more than a handful of students are impacted by Texas’ affirmative action program in any given year.
Kennedy’s Fisher opinion, moreover, provides a road map for conservative lawyers seeking to harass college admissions departments into submission. Though the Court upheld Texas’ program, Kennedy wrote that a university with a race-conscious admissions program must regularly evaluate new data and “tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest.”
In practice, that means that conservative lawyers can sue universities over and over again, driving up their legal bills, until finally the school decides that the game isn’t worth the candle and dissolves its affirmative action program.
Kennedy’s parsimony, however, is most pronounced in his gay rights opinions.
The journey from Kennedy’s 1996 opinion in Romer v. Evans—which struck down a Colorado constitutional amendment that “withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination,”—to marriage equality took 19 years. Along the way, Kennedy fretted about whether the Court was wading into “uncharted waters” by expanding equal marriage rights too much, too fast.
And even when Kennedy did embrace marriage equality in Obergefell v. Hodges, he tiptoed right up to the line of holding that discrimination against gay, lesbian, and bisexual Americans is subject to “heightened scrutiny” under the Constitution, without ever writing those magic words. At every stage of the journey from Romer to Obergefell, Kennedy used his decisions to dole out just a little bit — but never too much —more equality to sexual minorities.
In fairness, Kennedy’s actions can potentially be attributed to fear of a backlash that could have set LGBTQ rights back further than when he started — and he’s not the only member of the Court who shared this fear. But where was Kennedy’s cautious nature when Citizens United was before the Court? Or when he was asked to weigh in on the single most important piece of social welfare legislation in a generation?
When billionaires wanted to shape elections, there was no mountain high enough and no valley low enough to keep Justice Kennedy from giving them what they desired. But when same-sex couples came to Kennedy seeking equal rights, Kennedy told them to take a number.
What comes next
With Kennedy gone, the Court’s gay rights revolution is now a revolution interrupted. And it is likely that it will soon be a revolution in reverse. The thinly-reasoned, stingy nature of Kennedy’s individual rights opinions will make it very easy for conservative jurists to pick them apart.
One looming issue is whether anti-discrimination laws can be ignored by people who root their prejudices in religious beliefs — this is the issue that Kennedy recently ducked in Masterpiece Cakeshop v. Colorado Civil Rights Commission.
Even Justice Samuel Alito conceded, in Burwell v. Hobby Lobby, that religion does not permit an employer to fire someone because of their race, but what of other forms of discrimination? Can a boss who prays to a sexist god refuse to promote female employees? Or what about business owners suing for a right to refuse to serve gay customers?
It will be difficult, both politically and doctrinally, for the Court’s new majority to permit religious employers to discriminate against women. Thanks in large part to a string of cases litigated by a younger Ruth Bader Ginsburg, gender discrimination is viewed with great suspicion by the judiciary, and women enjoy heightened protection against government-sanctioned prejudice.
But Kennedy never quite got around to saying that discrimination on the basis of sexual orientation is subject to such scrutiny. That leaves Alito with an easy way to argue, based entirely on existing precedent, that homophobia is somehow less concerning than sexism — and that religious objectors should thus be free to ignore laws prohibiting discrimination on the basis of sexual orientation.
Indeed, the work of dismantling Kennedy’s great gay rights opinions is likely to begin long before Alito gets his hands on them. For a window into how this could work, consider Judge Edith Jones’ very brief opinion in Coker v. Whittington.
Coker is an odd case, involving two sheriffs’ deputies fired after they each decided that they would be happier with the other man’s wife. In holding that the two men could be fired for their private sexual relationships, Jones offered a very narrow reading of Lawrence.
“Public employees necessarily shed some of their constitutional rights as a legitimate exchange for the privilege of their positions,” Jones wrote in an opinion for the United States Court of Appeals for the Fifth Circuit. Adding that “sexual decisions between consenting adults take on a different color when the adults are law enforcement officers.”
It’s not hard to see what such a decision could mean for gay officers who encounter similar resistance from their boss. So long as Lawrence is good law, Judge Jones can’t allow someone to be prosecuted for being gay, but she could quite easily allow gay government employees to be fired.
Had Kennedy not slow-walked each of his gay rights decisions, had he actually reached the logical conclusion of his opinions — that all government discrimination on the basis of sexual orientation is constitutionally dubious — then gay officers would not need to fear for their jobs. But thanks to Kennedy’s revolution interrupted, they are now at the mercy of an increasingly conservative judiciary.
Nevertheless, for all of Kennedy’s shortcomings — his naive view of money in politics and his disregard for voting rights, his crusade against the Affordable Care Act, his expansive conservatism and his miserly liberalism — America will be much, much worse off with Kennedy off the Court.
The future now belongs to men such as Neil Gorsuch. It belongs to men eager to inject even more money into American politics. It belongs to men who will tear down reproductive freedom, give the Christian right broad immunity from the law, protect voter suppression, and even allow judges to sell themselves to campaign donors.
Kennedy made many bad decisions on the Supreme Court, but his single worst decision was to give his seat up to Donald Trump. Anthony Kennedy spent his career toying with liberals’ hopes for the future, but at least he gave us hope. His replacement, like Gorsuch, is likely to make even Scalia look like a moderate.