The U.S. Supreme Court’s strange 2015 term ended this week in a flurry of dysfunction on difficult issues (the inability to rule on President Barack Obama’s immigration orders), interspersed with predictable decisions (the unanimous stay-out-of-jail pass for the unethical but no longer felonious former Virginia Governor Bob McDonnell).
Most intriguingly, though, the term marked the emergence of a leftward-leaning Justice Anthony Kennedy. Kennedy, soon to be 80 years old, has sat at the center of the nine-member conservative court since the resignation of Justice Sandra Day O’Connor in 2005. He still retains his status as the deciding vote – but on this new, more liberal, if diminished court.
We may also be witnessing a phenomenon that conservatives have railed against for years: the gradual liberalization of justices as they age. In recent years, Justices Harry Blackmun, John Paul Stevens and David Souter, all Republican appointees, moved consistently left with advancing age.
The Supreme Court’s disarray since the death of Justice Antonin Scalia in February, with a 4-4 ideological split on many of its key issues, has been widely discussed.
Yet the court managed to break free of the muck of dysfunction in hotly contested cases, when Kennedy voted with the liberal justices. The result: The Supreme Court shifted appreciably to the left–even without confirmation of Obama’s nominee, Merrick Garland.
In two of the term’s last decisions, for example, Kennedy broke with his conservative colleagues, as well as his own past arguments, to create majorities that favored women’s access to reproductive care and affirmative action.
For most of his long tenure on the court, Kennedy, who was appointed by President Ronald Reagan, was the right-of-center jurist who generally sided with conservatives. He occasionally jumped ship, however, to join the four justices to his left to produce liberal outcomes. Kennedy did this most notably on same-sex marriage in Obergefell v. Hodges, but also on issues such as the rights of enemy combatants, mandatory life sentences for minors and state anti-immigrant laws.
In other high-profile areas, such as the role of race in public life, Kennedy usually wrote separate opinions to distance him from conservatives’ categorical rejection of any consideration of race. Yet he repeatedly voted with the right to reject the specific race-conscious program before the court. Similarly, he voted not to reject Roe v. Wade, while consistently ruling to uphold laws restricting abortion.
Scalia’s death, however, shifted the court’s dynamic. Whereas Kennedy’s choice in the past on closely contested cases had been to vote with four conservative justices to produce a conservative victory, or with four liberals to create a liberal victory, his choice on this eight-member court was to vote with four liberals to produce a liberal outcome, or with three conservatives to produce a 4-4 split and stalemate.
This dynamic produces a one-way ratchet that turns toward a more liberal court. For a justice clearly concerned about the effect of 4-4 paralysis on the court’s legitimacy and his leadership role on highly consequential issues, there was surely increased pressure on Kennedy to find a way to a majority. It is easier to reach five starting with four than with three.
The ratchet turned on the last day of the term in Whole Woman’s Health v. Hellerstedt. The court struck down Texas laws requiring doctors in abortion clinics to obtain admitting privileges at hospitals nearby and mandating that the clinics satisfy standards demanded of ambulatory surgical facilities. The requirements would likely have resulted in the closing of three-quarters of the state’s clinics, leaving a swath as large as California without an abortion provider.
In an opinion that Kennedy, as senior justice in the majority, assigned to Justice Stephen Breyer, the five-justice majority rejected the state’s health justifications and cited the prohibition on measures that place an “undue burden” on access to reproductive services. The decision may now be used to block similar restrictions adopted by a number of states.
Kennedy’s embrace of the opinion was a stark departure from his consistent votes to uphold abortion restrictions since his 1992 vote in Casey v. Planned Parenthood to uphold the core of Roe v. Wade.
In Fisher v. University of Texas, decided late last week, Kennedy supplied the deciding vote to uphold the university’s affirmative action plan. Following the invalidation of the university’s race-conscious admissions program 20 years ago, the Texas legislature passed a law mandating admission for any student in the top 10 percent of his or her high school class.
Though the law increased diversity by drawing on the state’s heavily segregated public schools, the university still found it inadequate. After the Supreme Court’s approval, in 2003, of a University of Michigan affirmative action program, Texas began accepting roughly 25 percent of its entering class through evaluations that allowed limited consideration of race.
Abigail Fisher did not finish in the top 10 percent of her class so she challenged the individualized evaluation program. She lost in the lower courts.
In a compromise opinion written by Kennedy, the court sent the case back to the court of appeals in 2013 for reconsideration. The appeals court stuck with its original ruling in favor of the university. Surprisingly, the Supreme Court then agreed to hear the case again — doubtless with Scalia contributing one of the four votes necessary to bring it back.
Kennedy’s startling opinion to uphold the affirmative action plan broke with his consistent antipathy toward allowing individuals to be labeled according to race.
The one-way ratchet does not fully explain Fisher. Because of the recusal of Justice Elena Kagan, a 4-4 split was off the table and Kennedy could create a conservative or liberal majority. The peculiarities of the case, however, weakened Fisher’s claim. She had graduated from Louisiana State University by the time the court first considered her case. In addition, Texas’s consideration of race was limited.
Fisher could not make a credible argument that she was rejected because of her race, rather than her grade point average and test scores. By the time the case came back to the high bench for a second hearing, all avenues for postponing the decision had been exhausted.
Yet Kennedy’s embrace of affirmative action stunned many. It seems consistent, however, with his embrace last term of a broad reading of the Fair Housing Act to prohibit discriminatory effects.
We may be witnessing the evolution of a justice who is increasingly prepared to revisit prior positions and to remain a central player on a more progressive court.
We may also be experiencing a collateral effect of Scalia’s absence. Imagine the scorn Scalia would have heaped on Kennedy for both his reconsidered abortion and affirmative action positions.
Despite Republicans’ irresponsible refusal to hold confirmation hearings for Garland, and barring a Republican victory in the coming presidential election, the Supreme Court looks poised to move inexorably left.