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.