Kennedy may also be remembered as the last Supreme Court justice ever to be confirmed by a unanimous Senate floor vote. Kennedy was confirmed on a 97-0 vote by the same Democratic-majority Senate that sixteen weeks earlier had soundly rejected President Ronald Reagan's first choice for the vacancy, the archconservative federal appeals court judge Robert Bork. The bipartisan acclaim for Kennedy now appears as a long-gone relic of a different era of Supreme Court politics.
Three decades after Kennedy's confirmation, his approval rating — if justices were polled just like presidents — surely would be significantly lower. Many conservatives would vote thumbs down because of his role in preserving the Roe v. Wade abortion rights ruling and in extending constitutional rights to gay men and lesbians. Some liberals might also turn thumbs down by citing Kennedy's pivotal votes in 5-4 decisions to gut campaign finance laws and jeopardize gun safety laws in the name of the Second Amendment.
The shorthand description of the various justices as liberal or conservative routinely used by Court watchers may amount to an oversimplification, but Kennedy's opinions and votes defy a one-word label. One veteran Kennedy watcher, however, sums him up as a "modest libertarian." Helen Knowles, an associate professor of political science at State University of New York in Oswego and author of the appreciative volume The Tie Goes to Freedom, sees three pillars in Kennedy's judicial philosophy: tolerance of diverse views, treating every individual with dignity, and respecting liberty but insisting liberty be used responsibly.
Knowles joins this writer in doubting the rampant speculation about Kennedy's possible retirement. "I don't think he's going anywhere soon," says Knowles. As he approaches age 82 in July, his health appears to be good. Thus, his legacy remains a work in progress that Knowles notes will be shaped in part by Kennedy's eventual vote in the gay wedding cake case argued in December. "The case involves two very central parts of his jurisprudence: both gay rights and free speech," she notes.
Kennedy has not tried to set out an overarching judicial philosophy as two of his longtime colleagues have done: the late justice Antonin Scalia, in his books extolling originalism and textualism, and Stephen Breyer, in his book elaborating on "active liberty" as a lodestar of judicial decision-making. Kennedy is instead as modest as Knowles describes and, unlike Scalia, has never to my knowledge mocked or derided justices or others for disagreeing with his views or opinions.
As successor to Justice Lewis F. Powell Jr., Kennedy moved into a "swing-vote" position on the Court that he shared with Justice Sandra Day O'Connor for the next 18 years. Kennedy played his pivotal role differently from O'Connor. As a former Arizona legislator, O'Connor was to some extent a finger-in-the-wind justice who seemed to look for politically acceptable compromises on hard issues, such as abortion. Kennedy is made of sterner stuff.
In general, Kennedy holds his views firmly, with no corner-cutting compromises, but he can also hesitate Hamlet-like with hard decisions. By happenstance, he was with a reporter on the day he joined O'Connor and David H. Souter in the 1992 decision that largely reaffirmed Roe v. Wade. Before taking the bench, he mused out loud about "crossing the Rubicon."
As Knowles and others have pointed out, Kennedy is the strongest and most consistent free-speech advocate on the current Court. Thus, according to the leaked accounts, it was Kennedy who pushed for the broad, precedent-overruling decision in Citizens United v. Federal Election Commission (2010) to free corporate spending in political campaigns instead of the narrower ruling that could have resolved the instant case.
Kennedy may know his own mind well, but he shows that he can hold seemingly contradictory positions in his mind from case to case. He has voted repeatedly to uphold capital punishment, but he also joined or wrote decisions to bar the death penalty for the intellectually disabled, for juvenile offenders, and in rape cases. He has been a strong vote in recent religious liberty decisions, but he also wrote the 1992 decision that barred school-sponsored prayer at graduation ceremonies.
Time after time, Kennedy has either written or joined 5-4 decisions, attesting to his pivotal role on an ideologically divided Court. Through 29 terms so far, Kennedy has registered the lowest number of dissenting votes in all but a few. Consciously or not, Kennedy appears to have responded to the recent effort by legal conservatives to push or pull the Court to the right by, if anything, moving somewhat to the left.
Thus, Kennedy cast pivotal votes in two critically important cases in 2016: his first ever vote to uphold use of race in university admissions in his decision in Fisher v. University of Texas and one of his rare votes to strike down state restrictions on abortion procedures in a decision he assigned to Breyer, Whole Woman's Health v. Hellerstedt. Those decisions underscore that Kennedy decides cases, judge-like, one case at a time, and that he remains the one justice never to be taken for granted.
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