'Stubborn' Facts, 'Stable' Law Shaped Kennedy's Votes

      Facts, it is said, are stubborn things. And when John Adams quoted that adage as the defense lawyer in the Boston Massacre trial, he added that the law is no less stable than facts.

      With the Supreme Court’s term now ended, the major question among Court watchers has been how to explain Justice Anthony M. Kennedy’s pivotal votes in the two stunning liberal victories on abortion and affirmative action. The experts have speculated that Kennedy “evolved” on the two issues perhaps to respond to political conditions outside the court and perhaps to safeguard his legacy.

      There is a simpler explanation, however, for Kennedy’s decision to uphold the University of Texas’s use of race in admissions and to strike down Texas’s regulations for abortion clinics. Based on the evidence, UT’s policies passed constitutional muster under Supreme Court precedents, but the abortion clinic regulations did not.

      In the abortion case, Whole Woman’s Health v. Hellerstedt, Kennedy had joined in establishing the governing precedent as one of the three authors of the jointly signed plurality opinion in Planned Parenthood v. Casey. The centrist trio Sandra Day O’Connor, David H. Souter, and Kennedy established the “undue burden” standard for determining the constitutionality of laws regulating abortion procedures. “Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right,” the opinion declared.

      The evidence in a four-day trial before a Republican-appointed judge showed that the regulations imposed by the Texas law known as H.B. 2 fit that definition. The supposed health regulations were shown to be unnecessary and the regulations were convincingly linked to a reduction by half in the number of abortion clinics in the state.

      The law, now struck down in its entirety, required that physicians serving the clinics have “admitting privileges” at a hospital within the area, ostensibly to facilitate an emergency transfer to a hospital if a patient suffers complications during an abortion. The law was unnecessary from the get-go because clinics were already required to have written protocols for such transfers.

      The law was doubly unnecessary, however, because, as Justice Stephen G. Breyer wrote in the decision, complications are rare in abortions and rarely require hospital admissions. The very few that do occur almost always arise at home days later. When Texas’s lawyer was asked at argument, he could not give Breyer a single instance when a woman had suffered complications at a Texas clinic requiring admission to a hospital.

      In its other major provision, H.B. 2 required that abortion clinics meet the hospital-like staffing and building standards required for so-called ambulatory surgical centers. In the decision, Breyer noted that the district court judge had made “well supported” findings that the costly requirements did not benefit and were not necessary. Abortions are safe and, as Breyer noted, safer than other procedures such as colonoscopies that Texas allows to be performed outside hospitals or surgical centers.

      Kennedy joined with Breyer and the three other liberal justices to produce a five-justice majority to strike the law down. Tellingly, the three dissenting justices at the Supreme Court — Chief Justice John G. Roberts and associate justices Samuel A. Alito Jr. and Clarence Thomas — countered the majority not on the merits but on mind-numbingly procedural grounds. Alito came close to a substantive argument only toward the end of a 44-page dissent by suggesting that H.B. 2 was not solely to blame for the closure of more than half of the state’s clinics.

      The facts in the affirmative action case, Fisher v. University of Texas, are admittedly murkier. And as the author of the 4-3 majority opinion Kennedy was applying a precedent from which he had dissented: the 2003 decision in Grutter v. Bollinger to uphold limited use of race in admissions at public colleges and universities. Grutter validated as “compelling” a school’s interest in a diverse student body and allowed limited use of race in a “holistic” consideration of applicants if the policies were necessary and narrowly tailored.

      In challenging UT’s policies, attorneys for the unsuccessful and unqualified white applicant argued in part that the policies were unnecessary. The school was admitting enough minority students, they argued, under the so-called Top Ten Percent Plan, which supposedly guaranteed admission to students graduating from a Texas high school in the top 10 percent of their class. But the evidence showed that in fact African American and Hispanic enrollment had stagnated, below what the school considered the “critical mass” needed to serve the interest in diversity and to guard against “racial isolation” for minority students.

      In his dissent for the three conservatives, Alito demanded that the university provide more specifics. Kennedy rightly countered that that sounded like an impermissible quota. Alito also plausibly accused Kennedy of going back on his earlier opinion in Fisher I to lower the deference for universities on race-conscious admissions. But with further review of the evidence, Kennedy was satisfied.

      It bears repeating that Justice Antonin Scalia’s assumed votes would not have changed the outcome in either case. Kennedy voted, however, after reviewing the facts and the law, not on the basis of preconvictions. As Adams said, “our wishes, our inclinations, or the dictates of our passions . . . cannot alter the state of facts and evidence.”