Justice Kennedy's First Priority: The First Amendment
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 Donald Trump, has been predicted — and 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, as well as the author of the opinion of the court in many.
Appointed by President Ronald Reagan after two 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 that legalized abortion. Starting with his decision to overturn two sodomy convictions in 2003, he has opposed discrimination against gays and was the author of Obergefell v. Hodges, the 2015 decision that legalized same-sex marriage.
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 v. Hodges. 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, and on subjecting states to special voting rights scrutiny based on evidence from 1964 and 1972. In every one of the past year’s 19 cases decided by 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. People should be free to engage in gay sex, and organizations should be free to engage in political speech.
That concern about freedoms of expression characterized his most recent decisions. He applied sharp scrutiny on 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 couple (Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission).
Even where he saw First Amendment rights as at stake in legislative redistricting cases, he ruled in 2004 and again this year that he professed to see no neutral principle distinguishing plans that were unconstitutionally partisan from those that weren’t. Any verbal formula, he apparently believed, would just leave judges free to rule for their partisan friends.
This led legal scholar Rick Hasen to predict — accurately — his decision to retire and then call his decision “final abdications” that indicate “a depressing kind of defeatism.” 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 but for both sides’ friendly accommodation of the other.
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 wrote, “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 is not so much legal argumentation as it is a plea for combatants in the culture war to show respect — even friendly respect — for one another.
The Senate will probably “confirm Justice Kennedy’s successor this fall,” as Majority Leader Mitch McConnell 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.
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