Some years ago, Dahlia Lithwick and I christened Justice Anthony Kennedy “the Sphinx of Sacramento.” Throughout his nearly 30 years on the Supreme Court, Kennedy’s mind has often seemed like a distant and mysterious country, with its own language and folkways beyond the ken of normal Americans.
Seldom has it seemed more puzzling than at the end of the Court’s 2015 to 2016 term. Kennedy’s votes in two crucial cases—one dealing with affirmative action and the other with abortion—procured important, and surprisingly sweeping, liberal victories on high-profile issues that conservatives care desperately about.
What is the Sphinx up to?
I often violently disagree with Kennedy’s legal judgment, but I cannot help but admire his personal qualities. In public, and from what I can tell in private, he is a man of deep kindness, courtesy, and benevolence, embodying the sort of small-town civic virtue one would expect from a man who left the snake pit of a big San Francisco firm to go into solo practice in Sacramento, California. His opinions seldom display the petty meanness that sometimes disfigures his colleagues’ work.
But of consistency, of any kind of judicial philosophy, I cannot find a trace. Kennedy is an instinctive, not an ideological, judge. Those instincts, by and large, are profoundly conservative. His two votes announced this week don’t by any stretch make him a new-hatched liberal. Bear in mind that, unless something really bizarre went on behind the scenes, he voted to affirm the Fifth Circuit’s opinion in United States v. Texas, the jury-rigged partisan takedown of the administration’s “deferred-action” immigration plan. And his comments from the bench during oral arguments in the public-employee union case, Friedrich v. California Teachers Association, suggest that he believes that 21st-century America is a soulless, totalitarian wasteland of federal overreach and executive tyranny.
Nonetheless, in Fisher v. University of Texas at Austin, the affirmative-action case, and Whole Woman’s Health v. Hellerstedt, the abortion case, Kennedy voted for (and in the affirmative-action case, personally wrote) strongly worded opinions that suggest the Court has, in fact, moved to the left on these agenda issues.
Fisher is perhaps the most surprising. According to Breaking In, Joan Biskupic’s terrific book about Justice Sonia Sotomayor, Kennedy was poised to write a sweeping opinion, one destroying affirmative action, in this very case when it came before the Court the first time in 2012. In the face of a furious draft dissent from Sotomayor, however, Kennedy held his fire. Instead, he told the lower court to employ “strict scrutiny” more, well, strictly. The lower court looked again—and upheld the affirmative-action program again.
When the case came back, there was little reason to expect anything but a brisk reversal. Yet during the intervening terms, Kennedy may have begun to move on race questions. It is gospel to many conservatives that “racism” is a dreadful and distasteful atavism that afflicts a few wretched individuals but has no implications for the fairness of the American system—and that this “racism as individual sin” is just as likely to be committed by minorities as by whites.
But in a 2015 case called Texas Department of Housing v. Texas Inclusive Communities Project, Kennedy crossed the ideological divide on an issue of race discrimination and the Fair Housing Act. Kennedy read the act to forbid actions that have a “disparate impact” on minority groups, even if they are not consciously discriminatory. That standard, he wrote, “permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment.” To most of us, that seems like an elementary proposition; but it is a significant evolution in Kennedy’s thought. It came in the context of a narrow opinion—no one would mistake Kennedy for Sotomayor—but it was significant nonetheless.
When the Fisher case came up again this term, Kennedy seems to have had the same reaction many to his left had: How long must we referee this tawdry claim by a mediocre student who could not produce any evidence that she was denied admission to the University of Texas because of race, who could not show that she was damaged beyond the payment of an application fee she would have paid in any case, and who has at any rate long since graduated from college?
The opinion Kennedy wrote was really not a narrow one. It strongly endorses the Lewis Powell-Sandra Day O’Connor view of affirmative action as a quest for racial diversity, and it goes out of its way to say that courts must defer to educational authorities when assessing race-conscious admissions plans. I was frankly startled by this language: “Once … a university gives ‘a reasoned, principled explanation’ for its decision, deference must be given to its conclusions.” The heart of the conservative case against plans like Texas’s was a belief—verging on dogma—that liberal university administrators used the language of diversity as a cover for their desire to favor some minorities and disfavor others. Kennedy gave that idea short shrift. It is a real change in his rhetoric and, in fact, the law.
That brings us to Whole Woman’s Health, the abortion case. Kennedy did not write the opinion, which was by Justice Stephen Breyer; but he did not write separately to narrow a fairly sweeping win for pro-choice forces. Justice Ruth Bader Ginsburg did write separately to underscore that the Court really means what it says—zero tolerance for phony “health” laws aimed at shutting down clinics. This would have been the cue for a Kennedy concurrence qualifying that language.
But, like the dog in Arthur Conan Doyle’s “ Silver Blaze,” the Sphinx did not bark. That silence is striking because Kennedy’s view on abortion has been very much in doubt. In fact, the movement to hobble abortion with “health” regulations takes its impetus from his opinion in the 2005 case of Carhart v. Gonzales. In that case, doctors challenged a federal “partial-birth abortion” statute that banned certain abortion procedures without allowing an exception for cases where a doctor regarded them as better for a woman’s health. A 2000 case had required such exceptions. But now Kennedy said that the legislature could decide that one wasn’t needed. The challengers had produced substantial medical evidence that it was needed; but Kennedy wrote that the “Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty … The medical uncertainty over whether the Act’s prohibition creates significant health risks provides a sufficient basis to conclude in this facial attack that the Act does not impose an undue burden.” In other words, lawmakers could overrule doctors in matters of women’s health. If the law passed the straight-face test, the Court would uphold it as a “health” law.
Flash forward to this week, when Breyer’s opinion (joined by Kennedy) said, “The statement [by a lower court] that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court’s case law.” Deference to legislators? Not so much.
Again, a very important shift.
What is going on? Ian Millhiser sees in some of this the influence of Sotomayor, who beyond question backed Kennedy off in Fisher and may have since educated him on her argument (spelled out in a dissent the next year) that “race matters” and that courts must not blind themselves to systemic racism.
But what about abortion? By signing on to the majority opinion, Kennedy may be signaling to litigators: Don’t bring us these deceptive measures and expect us to enact into the Constitution the wishes of the pro-life movement.
The past term may mark a turning point for the Court and its conservatives. At its outset, four of them had hustled a number of largely phony agenda cases onto the docket—not simply Fisher but also (financed by the same right-wing group) Evenwel v. Abbot, an assault on counting immigrants, children, and felons in legislative representation, and California Teachers Association v. Friedrichs, a conjured-out-of-thin-air challenge to public-employee unions. Over and over, the Court was asked to win battles for the right that it could not come close to winning in legislatures or the polls.
And then came Justice Antonin Scalia’s death. In its aftermath, the Senate Republican leadership dropped once and for all any pretense that law is anything but the crassest of partisan politics. Senate Judiciary Chair Charles Grassley told the world that no justice would be confirmed who did not toe the line—a line that the chief justice, a confirmed Reaganite, was now too “moderate” to be trusted with. The Court, Grassley and Majority Leader Mitch McConnell told the Republican base, was and would remain the GOP firewall; its job is to strike down Democratic programs and rubber-stamp Republican ones—nothing more and nothing less. Justices are in effect elected at the polls; Donald Trump could possibly select the next name.
How did this cynicism sound to Kennedy, who considers the majesty of the Court the defining virtue of the American system? O’Connor was once a loyal GOP foot soldier, who did her duty in Bush v. Gore. By the time she left the Court, according to Jeffery Toobin’s book, The Oath, she told a colleague, “It’s my party that’s destroying the country.”
Has that same realization begun to insinuate itself into Kennedy’s opaque mind? Has he had an O’Connor moment? This is just speculation on my part. But Kennedy really has shifted. In Obergefell v. Hodges, the same-sex marriage case, the states opposing marriage equality discovered that it is unwise to question Kennedy’s central dogma of “dignity” as the aim of constitutional law. Perhaps McConnell, Grassley, et al., should now resolve never again to treat the Sphinx of Sacramento as if he were Reince Priebus’s errand boy.