When Judge Anthony Kennedy was put forward for the supreme court by President Ronald Reagan, whose previous two nominations had been rejected, he was asked whether he had ever smoked marijuana. “No,” he insisted, “firmly no.”
Kennedy was a safe pair of hands. But in the just ended term, dominated by the death of fellow Catholic and Reagan appointee Antonin Scalia, he has emerged as the pivotal figure and surprised many by tilting America’s highest court to the left.
Related: Antonin Scalia: man of his word who shaped America in life and in death
In February, Scalia’s body was found in bed at a ranch in west Texas where he had been on a hunting trip. His larger-than-life presence and fiery opinions carried more influence than a single vote ; his death left a void. That vacancy, next to eight remaining justices ideologically divided, triggered a political dogfight over who should replace him.
But while Kennedy, 80 this month, succeeded Scalia as the longest-serving current justice, he was reluctant to don Scalia’s conservative mantle. Though he has long served as a swing voter in the court’s biggest cases, he has recently turned what might have been conservative victories into draws, and what might have been draws into liberal wins. “ Justice Kennedy Turns Into a Liberal,” one Harvard law professor’s headline declared this week.
The right, naturally, is disappointed. “Scalia’s absence seemed to coincide with a change in Kennedy,” Elizabeth Slattery, a legal fellow at the Heritage Foundation, said. “I think Scalia may have had a positive influence on him and may have been able to keep him from going off the rails.”
Kennedy wrote the opinion, for example, in a 4-3 ruling that a race-conscious admissions programme run by the University of Texas is constitutional. It was the first time in 28 years on the court that he had voted to uphold a race-based affirmative action plan. Indeed, when it considered the case in 2013, he wrote the opinion that sent it back to lower courts for closer study.
“I think this term we saw Justice Kennedy issuing some of the most important decisions of his career, particularly his fabulous opinion in the Texas affirmative action case,” said Neal Katyal, a former acting solicitor general for Barack Obama.
I think Scalia may have had a positive influence on him and may have been able to keep him from going off the rails
Elizabeth Slattery, Heritage Foundation
Kennedy also joined the court’s liberals in preventing Texas from enforcing a law that would have closed all but nine abortion clinics, a decision hailed as one of the most significant legal victories for reproductive rights advocates in decades. Previously, Kennedy had acted as architect for compromises or hinted that he felt deep conflicts and even horror about abortion.
“If Scalia was living, or if Scalia was replaced by me, you wouldn’t have had that,” declared Donald Trump, the Republican presumptive nominee. “It would have been the opposite.”
It was a 5-3 ruling: Scalia’s vote would not have made a difference unless he could have persuaded Kennedy to join him.
No ideological diehard
In fairness, Kennedy has never been an ideological diehard, as evinced by a nickname given him by two law writers almost a decade ago: “ The Sphinx of Sacramento ”.
“He’s not easy to predict and there are those who believe that’s a good thing for a judge, that the court has been too polarised for a long time,” said Nancy Gertner, a retired federal judge who now teaches at Harvard Law School.
This willingness to ally with both wings of the court brought him into conflict with Scalia last year. When Kennedy wrote the opinion that guaranteed the right to same-sex marriage, Scalia dissented. The conservative said that Kennedy’s ruling “diminish[ed] this Court’s reputation for clear thinking and sober analysis” and had descended “to the mystical aphorisms of the fortune cookie”.
Such was the force of Scalia’s sarcasm that it has been speculated that the derision strained the men’s professional relationship. “It was widely reported Scalia’s less than respectful dissent about Kennedy pushed him towards the liberal wing,” Gertner added.
Asked to compare the two men, both of whom she has met, Gertner contrasted them sharply. “Scalia took the air out of the room with his personality. In a sense, he was the glue of the right of the court,” she said. “With Kennedy, I couldn’t identify a coherent judicial philosophy. He is understated, even a little shy, but compared to Justice Scalia, so is every human being.”
In Gertner’s view, the court already holds conservative positions in many areas, such as criminal justice, so this most recent term can hardly be described as a lurch to the left. “It may be that the rightward turn of the court is stopped.”
When Republicans first refused to give Obama’s nominee, Merrick Garland, a hearing, conservatives and liberals alike began to fear that the reduced court could become dysfunctional. The term ended in several decisions without dissents and many rulings that only narrowly changed the law.
Related: Mock hearing for Merrick Garland yields dismissive Republican response
Four cases ended deadlocked at 4-4. Among them were a test of Obama’s plan to help millions of undocumented immigrants living in the US and a challenge to the finances of public sector unions. Both would have been decisive conservative victories if Scalia had been alive. The immigration case became a conservative victory by default, and the unions case a liberal win by default, but neither set a precedent.
In another case, the court failed to resolve a dispute between faith-based groups and the Obama administration over birth control, asking lower courts to take another look at the issue in search of a compromise. This implied it was trying to avoid 4-4 splits when it could.
“Justice Scalia’s untimely death has changed the court massively,” Katyal said. “Perhaps the most important impact is that the court is not resolving as many cases and controversies.
“The supreme court is almost never required to hear a case, and they only accept a very small percentage of cases they are asked to hear. That percentage has dropped since Justice Scalia passed away. They are not taking as many cases, and not taking the most important ones.”
He noted that the chief justice, John Roberts, often guides his colleagues toward as much unity as possible – or at least narrow decisions. “When the court does take a case, it often provides less guidance now,” Katyal said. “The court’s splintered 4-4 decision in the immigration case, which left over 4 million people uncertain about the law, is one example.”
Scalia’s sudden death shook up other dynamics. Clarence Thomas, the only justice with a more conservative record than Scalia, broke a 10-year silence to ask questions during an oral argument this term, and Justice Samuel Alito read more passionate dissents from the bench. Among the liberal justices, Sonia Sotomayor issued a blistering dissent about racial discrimination in a case about illegal stop and searches.
“Justice Scalia’s death had the effect of strengthening the voice of some of the more moderate and liberal members,” said Edward Fallone, a law professor at Marquette University Law School in Milwaukee, Wisconsin. “Scalia, with his strong opinions, often crowded out liberal points. Other jurists now feel able to stake out their own territory.”
Justice Scalia’s death had the effect of strengthening the voice of some of the more moderate and liberal members
Edward Fallone, Marquette University Law School
Kennedy had been moving in that direction for some time, Fallone added, and this was “his final coming out”.
Liberals now seem to have the momentum, he suggested. “Chief Justice John Roberts had been trying to operate a court of consensus. With Scalia’s death, I think the future is a more liberal court, unless a highly unlikely Republican success in the presidential election occurs. Roberts will not be in a consensus but in a conservative minority.”
The court still will be short-handed when the justices reconvene for the start of their new term on the first Monday in October. Mitch McConnell, the Republican majority leader in the Senate, remains adamant that Garland will not receive a confirmation hearing.
“The court has been able to chug along,” said Verna Williams, codirector of the Center for Race, Gender and Social Justice at the University of Cincinnati College of Law. “There haven’t been as many 4-4 splits as we feared when McConnell announced there would be no hearings. But it’s a political arena like all the rest.”
As for McConnell’s reasoning that the people should decide through November’s presidential election, Williams opined: “That’s a bunch of horse manure.”
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