There was the Warren court, the Burger court and the Rehnquist court, each nicknamed for the chief justice of its era. But the just completed term of the U.S. Supreme Court demonstrates once again that this is now Anthony Kennedy’s court.
Kennedy, the senior associate justice, sits at the middle of a divided court. Even if he doesn’t author the opinion, he almost always casts the pivotal vote on issues that split the nation’s highest court along ideological lines. This year, with the Supreme Court left with a vacancy by the death of Justice Antonin Scalia, was no different.
As the justices cleared their docket, Kennedy sided with his conservative colleagues on a politically charged immigration case, with a 4-4 deadlock effectively delivering the same result as a 5-4 majority — blocking President Barack Obama’s order deferring deportation for an estimated 4 million people in the country illegally.
Kennedy joined his liberal colleagues to provide one-vote margins on decisions striking down a Texas law restricting abortions and upholding a race-conscious admissions policy at the University of Texas. The implications spread far beyond the Lone Star State.
Kennedy emerged as the court’s wild card after Justice Sandra Day O’Connor stepped down 10 years ago. Lawyers appearing before the Supreme Court pay close attention to Kennedy’s questions, and they often direct their arguments directly at him. Some movement conservatives are infuriated by Kennedy’s flexibility. Some liberals pin their hopes on him.
We think he’s a model justice. Not because we always agree with him; we don’t. But because he approaches cases without a preconceived result.
Kennedy has generally been critical of affirmative action, but he wrote the University of Texas opinion, which said courts should give universities substantial leeway in designing admissions policies. He has a nuanced record in abortion cases, voting in favor of some restrictions and against others. On Monday, he joined an opinion by Justice Stephen Breyer that will thwart efforts to restrict access to abortions without sound reasons.
Court watchers thought Kennedy, who voted to strike down Arizona laws targeting illegal immigrants, could swing left again on the challenge to Obama’s immigration orders. On this case, however, he sided with the conservative bloc.
Kennedy is Exhibit No. 1 in the case against the Senate’s refusal to even schedule a confirmation hearing for Merrick Garland, Obama’s choice to succeed Scalia.
President Ronald Reagan nominated Kennedy, a fellow Californian, in November 1987 — with less than a year remaining in his final Oval Office term. Reagan picked Kennedy after the Senate rejected his first choice, Judge Robert Bork, and his second choice, Judge Douglas Ginsburg, asked the president to withdraw his nomination. The Senate, controlled by Democrats, confirmed Kennedy on a unanimous vote barely two months later.
Despite the efforts of Kennedy and his colleagues, the failure to fill Scalia’s seat rendered the court unable to settle several major issues, including aspect of Obamacare and dues collections by public employee unions. There’s no assurance that the court will have another chance at these issues soon, nor is there any guarantee that the vacancy will be filled soon after November’s election.
This we do know: three justices will be at least 78 when the next president is inaugurated. Kennedy will be 80. If the Senate turn the court into another partisan battlefield, Kennedy’s court could soon be filled with empty chairs.