Background
1987 proved to be a year of utter chaos in the United States Supreme Court. Similar to the situation that arose in 2015, an outgoing president was faced with a vacancy on the high court. In 1987, President Reagan nominated Judge Robert Bork of the Washington D.C. Circuit Court of Appeals to fill the opening. Bork, a conservative jurist, was promptly denied a seat on the court by the US Senate. Later in 1987, President Reagan nominated Judge Douglas Ginsburg to fill the vacancy. Judge Ginsburg ultimately withdrew his name from consideration after it was released that he smoked marijuana with law students while he was a professor at Harvard Law School. President Reagan was then forced to choose his third nominee for The Court, enter: Judge Anthony Kennedy. Judge Kennedy was a relatively young judge serving on the 9th Circuit Court of Appeals. His record was sparse yet palatable. Though the two prior nominations of 1987 proved disastrous, Judge Kennedy’s confirmation hearings lasted only three days and he was ultimately confirmed unanimously in the US Senate. He is the most recent Supreme Court Justice to have been confirmed unanimously. Thirty years later, Justice Kennedy is now the longest serving member of The Court. His illustrious career has been largely animated by his role as the so-called “swing vote” on the Rehnquist and Roberts Courts.
Justice Kennedy is 81 years old. His age, coupled with his long tenure on The Court, has sparked speculation of a possible retirement in the near-future. NPR and CNN, early in the summer of 2017, reported that many in Justice Kennedy’s inner-circle believed that the justice would retire in 2018. The reports cited the fact that Justice Kennedy had not hired any clerks for the 2018 term and that a former-staffer reunion, scheduled for 2018, had been moved to the summer of 2017. These moves sparked intense speculation over the Justice’s plans for the future. Though the reports were denied, the idea of a court without Justice Kennedy is an interesting one. If Justice Kennedy were to retire in the next two years, he would likely be replaced by one of the 21 potential conservative Supreme Court nominees that President Trump campaigned on. Moreover, the idea of a Supreme Court without Justice Kennedy proves to be terrifying for many left-leaning individuals. While the political motives of numerous justices has plagued the reputation of the Supreme Court, it is difficult to assign a particular jurisprudence to Justice Kennedy. Further, Justice Kennedy’s broad interpretation of the 1st and 14th Amendments is the underlying cause for his reputation as a moderate jurist. This judicial philosophy has contributed to decisions that have gained the ire of both the political right and left.
Justice Kennedy on Election Law
In 2002, Congress passed the Bipartisan Campaign Reform Act (BCRA or McCain-Feingold Act). The BCRA instituted a limit on formerly unrestricted “soft money” in political fundraising. The law was passed in reaction to large sums of money being donated by wealthy individuals, labor unions, and corporations. Additionally, the BCRA instituted restrictions on political advertising from groups that were not part of a candidate’s campaign. These restrictions banned corporations, unions and wealthy individuals from advertising for a particular candidate or cause within 30 days of a primary election and 60 days of a general election. The BCRA is the second major law to change the restrictions on certain groups’ political speech. The BCRA faced its first test in the Supreme Court in 2003 with McConnell v. FEC. In this ruling, The Court upheld the law in a 5-4 decision. Justice Kennedy, however, dissented forcefully. He claimed that the BCRA forced “speakers to abandon their own preference for speaking through parties and organizations.” Though the law was upheld, many free speech activists saw Justice Kennedy’s dissent as an opportunity if the makeup of the Court were to change. In 2010, these free-speech advocates were given their second chance.
In 2010, the Supreme Court heard arguments in the case known as Citizens United v. FEC. This case, like McConnell, concerned the BCRA. Despite the two decisions being 7 years apart, the ideology and prevailing judicial philosophy of the court had changed drastically with the addition of Chief Justice John Roberts and Justice Samuel Alito to the bench. Thus,McConnell was overruled and major portions of the BCRA were struck down.
The majority opinion in Citizens United was written by Justice Kennedy, and it depicts his broad interpretation of the 1st Amendment. Justice Kennedy asserted that Congress had no right to fine “citizens, or associations of citizens” for participating in political speech. Justice Kennedy defended his position by citing the decision in Buckley v. Valeo, which upheld the requirement for all political donations to be disclosed and reported. Justice Kennedy wrote, “prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits, and citizens can see whether elected officials are ‘in the pocket’ of so-called moneyed interests… This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”
Justice Kennedy’s broad interpretation of the 1st Amendment changed Supreme Court precedent, and it also changed the dynamic of US elections. Ultimately, his decision has gained support of free-speech groups on the political right, and it has gained significant backlash from the political left. Nonetheless, the prevailing judicial philosophy of Justice Kennedy, and his role as the swing vote, changed the course of the relationship between the judiciary and political groups for the foreseeable future.
Justice Kennedy on Same-Sex Marriage
In 2003, the Supreme Court heard Lawrence v. Texas. The case concerned a Texas statute that banned the practice of sodomy. The decision of The Court was to overturn the statute; Justice Kennedy offered The Court’s majority opinion. In his decision, Justice Kennedy wrote that the Texas law unduly impeded an individual’s liberties that are protected in the Due Process Clause of the 14th Amendment. Further, Justice Kennedy ended his decision with a unique interpretation of the Due Process Clause stating, “the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal private life of the individual.” While this quote may seem rather benign on the surface, it indeed suggests that Justice Kennedy adopts an extremely broad interpretation of the 14th Amendment. Nowhere in the text of the amendment is a compulsion to use compelling state interest as a qualification of a statute’s constitutionality. Thus, Justice Kennedy has effectively taken away an entire line of reasoning from legislators if they were to cite state or national interests in defense of a law. Nonetheless, this broad interpretation of the 14th Amendment set the stage for Justice Kennedy’s most recent decision on gay rights.
In 2015 the Supreme Court reviewed and decided on Obergefell v. Hodges. The Supreme Court granted this particular case the writ of certiorari because of the conflicting Circuit Court rulings regarding state bans on same-sex marriage. Just as he did in Lawrence, Justice Kennedy offered the majority decision in a case of this ilk. He held that the case was not about the right to same-sex marriage but rather “the right to marriage in a comprehensive sense.” Justice Kennedy ruled that a state’s ban on gay marriage was unconstitutional based on the Equal Protection Clause of the 14th Amendment. His analysis of the 14th Amendment shows a judicial philosophy that includes a number of implied applications of the 14th Amendment; the right to marriage is indeed not mentioned anywhere in the 14th Amendment. Nonetheless, Justice Kennedy’s decision inObergefell can be summed up in the manner in which he concludes his opinion: “It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
Justice Kennedy’s decisions on gay rights cases point to a major tenet of his judicial philosophy: a broad interpretation of the 14th Amendment. By invoking the implied powers of the Due Process and Equal Protection Clauses, Justice Kennedy has established poignant precedents for civil liberties cases.
Conclusion
Justice Kennedy’s tenure has been largely defined by his role as the “swing vote” of the high court. The prospect of his retirement would not only change the current judicial philosophy of the Supreme Court, it would likely result in a court with no “swing votes” at all. Nonetheless, the perils of over-analyzing the political motivations behind Supreme Court decisions are numerous. The most accurate explanation of how a justice gains their reputation is to look at the various philosophies they use to justify their writing. In the case of Justice Kennedy, it is imprudent to label him as a politically moderate, libertarian or unaligned jurist. However, his uniquely broad reading and application of the 1st and 14th amendments have lead to controversial decisions like Citizens United and Obergefell. These decisions resulted in decisions that are praised and criticized by Republicans and Democrats, alike. The post-Kennedy era will result in much more than an ideologically tilted court, it could inevitably lead to a court without justices that have equally broad definitions of the 1st and14th Amendments.