Editor’s note: Vikram Amar is dean of the University of Illinois College of Law and the Iwan Foundation Professor of Law. Amar, an expert in constitutional law, spoke with News Bureau business and law editor Phil Ciciora about Anthony Kennedy’s retirement from the U.S. Supreme Court.
Justice Anthony Kennedy, the last Reagan appointee, was on the U.S. Supreme Court for more than 30 years. What is his legacy?
Supreme courts are named after chief justices – the Warren Court, for example – but usually a court’s fulcrum is someone else. In the 1980s and 1990s, it was Lewis Powell and Sandra Day O’Connor, respectively. But since O’Connor’s retirement in 2006, Kennedy has clearly been the court’s pivot point between its liberal and conservative elements. Powell and O’Connor were one kind of “middle” justice. They often “split the baby” by adopting a bottom-line position in between the liberal and conservative approaches on a given topic. Kennedy was different. On any particular area of law, he might join the conservatives or the liberals wholeheartedly, but he would swing, so to speak, from issue to issue.
Kennedy was a reliable conservative vote on business issues, but less so on social issues affecting the rights of women and the LGBTQ community. How do legal scholars account for such a discrepancy?
It’s important to remember that Kennedy’s voting pattern was, generally speaking, conservative. He joined conservatives on many key issues beyond the business arena, including the scope of congressional power under the Commerce Clause in the famous 2012 Obamacare case, for example. Another example is the huge 2013 case gutting the Voting Rights Act.
He also joined the conservative wing in campaign finance cases, in Second Amendment cases, in criminal law and criminal procedure cases and in cases protecting conservative speech, like the 2000 case upholding the Boy Scouts’ right to exclude gays; the case last month involving the Colorado baker who didn’t want to create a same-sex wedding cake; and the case a few weeks ago of the Illinois state employee who didn’t want to fund the public-sector union that represented him.
Even on abortion, Kennedy voted somewhat conservatively – to uphold bans on so-called “partial birth” abortions and to uphold significant abortion restrictions in the famous Planned Parenthood v. Casey ruling in 1992 that nominally preserved but explicitly diluted the right recognized in Roe v. Wade. By post-war standards, Kennedy was quite a conservative jurist.
Justice Kennedy was responsible for some important judicial victories for gays and lesbians. In a famous 1996 Colorado case, he authored a 6-3 ruling striking down a law that singled out gays, lesbians and bisexuals and denied them protection of the law. In 2003, he wrote for a five-justice bloc to invalidate Texas’ criminalization of gay and lesbian sexual activity. And, most famously, in Obergefell v. Hodges in 2015, he wrote the 5-4 ruling holding that same-sex couples had the same federal constitutional right to marry enjoyed by straight couples. He explained his opinions in this area by proclaiming that laws cannot be grounded in hatred or animus towards individuals or groups. Critics found his invocation of the need to respect the dignity and personhood of all individuals to be vague and selectively applied, but these ideas were central to much of his jurisprudential identity.
Near the end of his career, Justice Kennedy surprised people by joining the liberal bloc in 5-4 rulings to uphold race-based university affirmative action and the authority of voters to use direct democracy to create independent commissions to draw state and federal legislative districts.
Do you foresee President Trump nominating someone in the Gorsuch mold – reliably conservative and relatively young for a Supreme Court justice – to fill Kennedy’s seat?
Yes, and given the tools and cues available these days, “reliably conservative” is easier to figure out. Gone, I think, are the days when justices like William Brennan, Harry Blackmun and David Souter “surprised” the Republican presidents who appointed them.
Can Democrats put a brick on whomever President Trump nominates to Supreme Court, similar to what Senate Majority Leader Mitch McConnell did to Merrick Garland in 2016?
I don’t see how. Republicans have a majority in the Senate. While there are a few Republicans sensitive on the abortion issue, recent nominees have successfully avoided having to share their current views on that jurisprudential topic, so I’m not sure there will be any Republican “no” votes. And there are several moderate Democrats up for reelection in states where Trump is popular, who themselves will have trouble voting “no.”
I’ve seen implausible suggestions that the Democrats can and should skip town, which, given Senator McCain’s illness, could prevent the Senate from having a quorum to do business, but the constitutional text and Senate rules allow a minority of members to compel, by force if needed, the attendance of absent members. Games like this are unlikely to succeed. That’s why winning elections is big.
At the time, President Obama said that a rejection of Merrick Garland’s nomination to the Supreme Court would damage its reputation – and that the Court would become “a pure extension of politics.” Have we arrived at that moment?
I don’t know. We certainly worried about that after Bush v. Gore in 2000, and yet the court endured. And given how tribal the other two branches have become of late, the court is always going to look better by comparison. But I do think we may miss having a justice who moved back and forth between the two philosophical camps. Perhaps Chief Justice Roberts will evolve into that role, albeit to a lesser degree, in the short run.