Justice Anthony Kennedy has always been known for his dramatic flair despite his rather mild professorial, even owlish, persona. He enjoys dressing up as James Madison to present lectures on the Constitution. He once excused himself from a conversation at the court to ponder a difficult vote. “I must brood,” he allowed.
His testimony before congressional committees on the court’s annual budget often contained impassioned discourses on how the justices distinguish themselves from the political branches by their objective legal reasoning and their devotion to a unique idiom.
Indeed, his arrival at the nation’s highest tribunal in 1987 was as climactic as was his announced retirement – all because of the focal point he occupied over these three decades.
When Justice Lewis F. Powell retired from the court in 1986, the hysteria from the right and left was predictable. Though a Nixon appointee, Powell, a courtly moderate Virginian, had occupied the “swing seat” on the bench, sometimes voting with the liberal bloc and sometimes with the conservative wing. On hot-button issues such as affirmative action and religion, he fashioned a middle ground. Thus his departure unleashed the brutal battle of “swing seat” confirmation politics.
Edward Kennedy famously launched the first salvo from the Senate floor as soon as the Reagan administration nominated Judge Robert Bork, an uncompromising conservative, for the Powell vacancy.
Down to defeat went Bork, the victim of a Democrat majority in the Senate, followed by an abortive second nomination, which went up in smoke after the revelation that that the appointee had smoked pot with his law students. Enter Tony Kennedy, the moderate conservative from the 9th US Circuit Court of Appeals, the former Catholic altar boy whose father joked he would pay him if he just once would do something naughty!
Kennedy has often been poised at the juncture between four liberal and four conservative justices, providing the fifth vote to preserve access to abortion, allow affirmative action in university admissions, ban the use of the death penalty for juveniles and, most historically, create rights to marriage equality and sexual privacy.
It is on the hot-button social issues of abortion and gay rights that his legacy may prove both enduring and endangered. In 1992 Kennedy joined his colleagues Sandra Day O’Connor and David Souter to fashion a compromise modification of Roe v. Wade; they allowed states to place restrictions on abortion unless they posed “an undue burden” on a woman seeking to end her pregnancy.
It appears that a Trump nominee, suggested by conservative interest groups, would join four current members of the court (John Roberts, Clarence Thomas, Samuel Alito and Neil Gorsuch) to scrap that limitation on abortion restrictions, which in effect would ban access to the procedure in many states. The unknown factor in this evolution is how multiple generations of American men and women – who have lived their lives knowing that abortion was an option – will respond.
Kennedy’s contributions to marriage equality and gay rights are probably more secure. Polls show that 61% of Americans now support same-sex marriage. It is as unlikely that society will move backward on this issue as it would be to contemplate that states would someday return to outlawing marriage between races.
Aside from how Kennedy’s departure will affect particular issues, his absence will remove the last consistent voice of moderation and compromise from among “the Supremes.”
The court’s composition, always a reflection of the nation’s political trends, will now look as polarized as the body politic. And this is a genuine shame. Although the country is experiencing one of its periodic phases of disharmony, Americans are generally a moderate polity.
Justices who pursue the middle ground provide a balm to the occasional extremism that threatens to disrupt our republic. Barry Goldwater was wrong: Moderation in pursuit of justice actually is a virtue.