Nation & World

Kennedy upheld affirmative action, abortion rights, same-sex marriage; will that legacy last?

As the Supreme Court ended its term in 2016, Justice Anthony Kennedy was the lightning that struck not once, but twice.

First he was the swing vote and writer of an opinion that preserved the right of public universities to consider race as a factor in admissions. Then he was the deciding vote in a closely watched ruling that struck down Texas' strict regulations of abortion providers.

Now that Kennedy has announced his retirement, conservatives hope President Donald Trump will soon reverse the legacy that upheld both abortion rights and affirmative action in a single week.

From same-sex marriage to capital punishment to free speech rights, Kennedy regularly sided with the court's liberal majority on social issues, defying expectations after President Ronald Reagan nominated him to the court in 1987.

He was hardly a liberal — the Sacramento-born Kennedy voted with Chief Justice William Rehnquist as often as any other jurist from 1992 to 2005, when Rehnquist died. But he sided with the court's liberal appointees at least once each Supreme Court term in nearly all of his 30 years on the bench.

"Conservatives were indeed often disappointed with Kennedy and his votes on a variety of issues, particularly social ones," Amy Howe, co-founder of the Scotusblog, said in a post Wednesday. "One such topic was abortion."

In 1992, Kennedy wrote a joint opinion with Justices David Souter and Sandra Day O'Conner that upheld the "essential holding" of Roe v. Wade — the court's 1972 landmark abortion ruling — in a case that involved a challenge to Pennsylvania's abortion restrictions. "Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision,” the justices wrote.

Twenty-four years later, Kennedy was the swing vote in Whole Woman's Health v. Hellersted, ruling that Texas could not restrict abortion services in ways that create an undue burden for women seeking the procedure.

Over the last year, Supreme Court watchers have speculated how key Supreme Court decisions might have turned out differently if the U.S. Senate had confirmed Merrick Garland, President Obama's pick to the court, instead of Trump's nominee, Neil Gorsuch.

It is also worth pondering how the court might have ruled had Reagan chosen a jurist other than Kennedy to replace Lewis F. Powell, a liberal who had announced his retirement in 1987.

Kennedy led the court on numerous cases involving laws that discriminated against gays and lesbians and prevented same-sex marriage. In 1996, he wrote the court's 6-3 opinion striking down a state constitutional amendment in Colorado that prevented local governments from providing protected status based upon homosexuality or bisexuality. He was part of the 6-3 majority in 2003 that struck down a Texas sodomy law and, by extension, invalidated sodomy laws in 13 other states.

In 2013, Kennedy provided the decisive vote in an opinion he wrote, which struck down the federal Defense of Marriage Act, which prevented married same-sex couples from collecting federal benefits. He also wrote the court's opinion two years later invalidating bans on same-sex marriage in Ohio and other states.

Kennedy joined the court's conservative jurists on numerous landmark decisions. He wrote the majority opinion in Citizens United v. FEC, concluding that the First Amendment prevents the government from restricting independent expenditures by corporations, unions and other groups to influence elections. He also joined conservatives in 2008 by striking down the District of Columbia's hand gun ban, a key victory for the National Rifle Association and supporters of the Second Amendment.

Despite such decisions, some liberal groups pleaded with Kennedy not to retire at the end of this year's term.

"How can we put this the right way? Please don’t go," the New York Times editorial board wrote in a lengthy open letter in April.

Ever the unpredictable swing vote, Kennedy did not side with liberals on this one.

Stuart Leavenworth: 202-383-6070, @sleavenworth
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