Justice Anthony Kennedy was the swing vote on key abortion and affirmative action cases
Scalia's death in February shook the court and impacted several cases
The court was expected to take a right turn this term
The Supreme Court term that was rocked midway with the sudden death of Justice Antonin Scalia came to a close on Monday, showcasing once again the pivotal role of Justice Anthony Kennedy.
It was a term few expected. Back in October, many believed the court was poised to take a right turn after having cleared the way for gay marriage and ruled in favor of Obamacare.
The new docket included cases on public sector unions, voting rights and affirmative action. An abortion case loomed as a potential grant.
The conventional wisdom was that the five conservative justices would come together and swing the court to the right on some of those hot-button issues that capture the public’s attention.
But that didn’t happen. Everything changed on the night of February 13, when Scalia, a conservative titan, died while on a trip to Texas. That created a 4-4 split among liberal and conservative-leaning justices and changed the calculus on the bench over how cases were decided.
Then, Kennedy stunned court watchers when for the first time, he voted in favor of an affirmative action plan in upholding the race-conscious admissions plan at the University of Texas. His majority opinion in the 4-3 case set out a road map of sorts for other schools to follow. Justice Elena Kagan recused herself in the case.
“Kennedy’s evolution matters because at least for the moment, his is the decisive vote on this and subsequent challenges that are already in the pipeline, on the constitutionality of race-based affirmative action programs,” said Steve Vladeck, a CNN contributor and professor of law at American University Washington College of Law.
On the final day of the term, he then joined the four liberals in rejecting a Texas law that limited access to abortion clinics.
Kennedy has penned virtually every major abortion ruling since joining the court in 1988, including the 1992 Planned Parenthood v. Casey ruling that said states could impose restrictions as long as they didn’t impose an undue burden on the woman and a controversial 2007 decision upholding the federal ban on so-called “partial-birth” abortions.
Although he was the decisive vote in the 5-3 decision, Kennedy allowed Justice Stephen Breyer to write the strongly worded opinion.
Impact of Scalia’s death on the trail
While Supreme Court opinions and justices are always fodder for the campaign trail, Scalia’s death also injected new fire into the 2016 election.
Both sides quickly began to clamor about the importance of naming Scalia’s replacement, with liberals having an opportunity to turn an influential, conservative seat to their side and conservatives looking to hold the line.
Scalia’s death ignited a debate on the presidential campaign trail about the future of the court as Republican candidates attacked Chief Justice John Roberts for his past votes on Obamacare, and it triggered a nasty battle between the political branches concerning whether Merrick Garland, Obama’s choice to replace Scalia, would get a confirmation hearing before the election.
Life with eight justices
Thrust into the political spotlight, the court had to stare down the reality of potential 4-4 splits.
For the most part, the justices kept their heads down, expressing their grief about the loss of a colleague but refraining from discussing the political maelstrom. The message they sent was that court was going to function with eight members like it had before at various times in history.