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.