Liberals’ worst fears are coming true at the prospect of President Donald Trump naming a second justice to the U.S. Supreme Court. Many worry their most treasured legal precedents are now endangered.
However, retiring Justice Anthony Kennedy’s own record is a case study on the unpredictability of the Supreme Court. He was appointed by Republican President Ronald Reagan, confirmed unanimously in a Democrat-controlled U.S. Senate and matured into the court’s influential swing voter.
The right-wing nominee of today could be the moderate libertarian of tomorrow.
Even as Trump and Senate Republicans hope to install a sufficiently conservative judge, there is no assurance he or she will stay that way on the court. Trump’s allies have signaled he’s only considering relatively young judges for the job, ranging from mid-40s to mid-50s.
A lifetime appointment is a long time. Like Trump nominee Neil Gorsuch, who was 49 when he was nominated, the next justice could well serve for 30 years or more. Their views, along with the issues facing the court, are sure to evolve over the next few decades.
“It’s notoriously difficult to predict how a nominee will decide specific cases on the bench. Who could have predicted that Justice Scalia would overturn laws banning flag-burning?” Sen. Chuck Grassley, chairman of the Senate Judiciary Committee, wrote in a news release last week.
The political moment in which Kennedy was confirmed to the Supreme Court reflects our present situation in some ways. The seat was vacated by Lewis Powell, a Nixon appointee seen as the court’s swing vote. Democrats worried replacing a moderate like Powell with a conservative jurist would skew the court too far right.
Reagan’s first nominee, the staunch conservative Robert Bork, was rejected by the U.S. Senate, with six Republicans joining the Democrats in opposition. A second nominee, Douglas Ginsburg, withdrew himself from consideration after he admitted to smoking marijuana. Kennedy was a compromise to Democrats who objected to Bork’s right-wing views.
Some conservatives still hold a grudge over Bork’s failed bid, saying it marked a shift in partisan opposition to court confirmations. As recently as 2016, when Republicans declined to hold hearings for then-President Barack Obama’s Supreme Court nominee, Sen. Chuck Grassley brought up the Bork confirmation, referring to “the unprecedented treatment of Judge Robert Bork.”
Kennedy became famous for delivering opinions frustrating to people of all political ideologies, a pragmatic legal mind with a broad libertarian streak.
Kennedy wrote the majority opinions in a handful of important gay rights and abortion cases, delivering historic blows to social conservatives who hoped to use state law to infringe on individual rights.
“Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct,” Kennedy wrote in the 2003 Lawrence v. Texas opinion, which overturned state anti-sodomy laws.
Kennedy’s plurality opinion upholding abortion rights in Casey v. Planned Parenthood has become the thesis of the pro-abortion rights libertarian movement. He wrote, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Alternatively, Kennedy angered liberals in cases like the landmark Citizens United v. Federal Election Commission, ruling corporations could spend unlimited money on political communications.
“By suppressing the speech of manifold corporations, both for-profit and nonprofit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests,” Kennedy wrote in Citizens United.
Kennedy did not always reach libertarian conclusions. He outraged property rights advocates by joining the majority opinions in Kelo v. City of New London — which upheld local governments’ power to seize land through eminent domain — and in Gonzales v. Raich — which affirmed the federal government’s authority to interfere with state marijuana laws.
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In a 2005 interview with the New York Times, Kennedy rejected political labels, saying “[Conservative is] not a term I usually use for myself. People say I’m a libertarian. I don’t really know what that means.”
In short, Kennedy was an accidental libertarian. He delivered pro-freedom opinions because they were in line with the facts and American legal history, not because of his underlying political philosophy.
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