Justice Kennedy opts for a liberal legacy

01:27 - Source: CNN
The most important abortion case in decades

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Jeffrey Toobin: Anthony Kennedy made two recent votes, consequential and liberal-leaning, on affirmative action and abortion rights

He says Kennedy may recognize that election could push court further left, may prefer to align with ascendant liberal court

Editor’s Note: Jeffrey Toobin is CNN’s senior legal analyst and author of “The Oath: The Obama White House and the Supreme Court.” The opinions expressed in this commentary are solely those of the author.

CNN —  

Perhaps Anthony Kennedy sees the writing on the wall. Perhaps he recognizes that the Supreme Court is heading in a more liberal direction, and he intends to lead it there – as he has led the court so often in his extremely consequential nearly three decades as a justice.

That’s one possible explanation for Kennedy’s crucial pair of votes at the end of this year’s Supreme Court term. Last week, Kennedy wrote the court’s opinion in Fisher v. University of Texas at Austin, which preserved the right of universities to consider race as one factor in admissions.

Monday, Kennedy provided the winning margin to the court’s four liberals to strike down Texas’s strict regulations of abortion clinics and abortion providers, in Whole Woman’s Health v. Hellerstedt. To put it another way, in the space of week, Kennedy saved both affirmative action and abortion rights – an extraordinary liberal perfecta.

What makes Kennedy’s votes so striking is that he had often voted the other way – that is, with the court’s conservatives – on these very issues.

In 2003, the court heard a challenge to the admissions program at the University of Michigan law school, a case that bore considerable similarities to the one in Texas. In that case, Justice Sandra Day O’Connor’s opinion for the court upheld the Michigan plan in Grutter v. Bollinger, but Kennedy dissented.

In a similar vein, in 2007’s Gonzales v. Carhart, Kennedy wrote for the court in upholding the federal ban on so-called partial birth abortions. To be sure, the issues were not identical in these cases, but they were pretty close. Against abortion rights in Carhart; for those rights in Hellerstedt. Against affirmative action in Grutter; for the practice in Fisher.

What’s going on? Justices always say that they take each case as it comes, and Kennedy may simply have seen close issues differently on these occasions. It is true, too, that Kennedy’s judicial philosophy has been less predictable than most of his colleagues. That’s why he’s been the swing vote for so long.

He led the conservative fight to deregulate American political campaigns in Citizen United and subsequent cases; he is also the architect and chief author of the gay civil rights revolution, which culminated in his opinion last year that guaranteed gay people the right to marry in all 50 states.

But justices count votes, just like the rest of us. After the death of Antonin Scalia in February, the lineup of the Supreme Court included four consistent liberals – Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. There are three consistent conservatives, Samuel Alito, Clarence Thomas and (most of the time) Chief Justice John Roberts. Kennedy usually votes with the conservatives, but not always.

President Obama has nominated Merrick Garland to replace Scalia. Though that nomination is stalled, perhaps forever, the polls suggest that a Democratic president will fill that seat, with Garland or someone of similar views

In all, then, it seems likely (as it may seem likely to Kennedy) that there may soon be five consistent liberal votes on the court. They will call the shots.

Kennedy will turn 80 in less than a month. He faces the prospect of spending his last years on the court as an architect of a new liberal ascendancy – or as a powerless figure in dissent. This month at least, Kennedy chose the liberal side. As a justice who clearly enjoys the exercise of power, Kennedy may be finding a continuing embrace of the liberals the most congenial path.

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Jeffrey Toobin is CNN’s senior legal analyst and author of “The Oath: The Obama White House and the Supreme Court.” The opinions expressed in this commentary are solely those of the author.