Bench Memos

Is Justice Kennedy Grooming Himself for Posterity?

With last term’s Obergefell decision, his unexpected 4–3 opinion in Fisher v. University of Texas, and his siding with the Supreme Court’s liberal bloc to strike down Texas’s HB2, the regulation of abortion clinics and abortion providers passed in 2013, Justice Anthony Kennedy’s judicial legacy will include the trifecta of  same-sex marriage, racial preferences, and abortion rights — hardly what President Ronald Reagan had in mind when he nominated Kennedy to the High Court in 1987, following the Senate’s shameful rejection of Judge Robert H. Bork. (Sadly, “Borking” paid off for the Left.) Does Kennedy’s recent leftward tilt indicate a conscious decision on his part to join the ascendant liberals, cementing a progressive legacy, as suggested by Jeffrey Toobin?

Or, as Professor John Yoo suggests, is Kennedy merely an unprincipled weathervane who over the course of his lengthy career “fell sway to the siren song of the academy and the media”?

My own take, in a post in the Library of Law and Liberty entitled “The Mau-Mauing of Justice Kennedy,” is that he was intimidated by Justice Sonia Sotomayor into abandoning his lifelong opposition to racial preferences. Republican presidents have appointed many disappointing justices to the Supreme Court: Earl Warren, William Brennan, Harry Blackmun, John Paul Stevens, Sandra Day O’Connor, David Souter, and unfortunately others. Whatever his motivations, one thing is clear: Justice Kennedy is rapidly rising in the pantheon of Bad Supreme Court Picks. This will be Kennedy’s ignominious legacy.

Most Popular

Culture

Jussie Smollett Jokes Declared Off-Limits

The Jussie Smollett story has been declared not fit for jokes. "It's a straight-up tragedy," declares the co-creator of a Comedy Central show, South Side, set in Chicago. Bashir Salahuddin, a former Jimmy Fallon writer, says “The whole situation is unfortunate. Particularly for the city, there’s bigger ... Read More
U.S.

What The 1619 Project Leaves Out

“The goal of The 1619 Project, a major initiative from The New York Times that this issue of the magazine inaugurates, is to reframe American history by considering what it would mean to regard 1619 as our nation’s birth year,” The New York Times Magazine editors declare. “Doing so requires us to place ... Read More
PC Culture

Courage Is the Cure for Political Correctness

This might come as some surprise to observers of our campus culture wars, but there was a time, not long ago, when the situation in American higher education was much worse. There a wave of vicious campus activism aimed at silencing heterodox speakers, and it was typically empowered by a comprehensive regime of ... Read More
Elections

Trump and the Black Vote

"Donald Trump is a racist, white supremacist, white nationalist. So are his supporters." Some version of that refrain is heard almost hourly somewhere in mainstream media. Democratic politicians seem to proclaim it more often than that. Listening only to the Left, you'd conclude that more than half a ... Read More