Abstract
More than any single ruling, the retirement of Justice Kennedy may be the most influential event of the last term. Kennedy offers dual legacies: often described as a swing vote, but on the whole more conservative than not; defender of free speech and of gay rights, which came into conflict in one of his last major decisions in Masterpiece Cakeshop; loved and hated by many as author of both Obergefell and Citizens United; Justice Kennedy emerged in the tumultuous conflict over the nomination of arch-conservative Robert Bork, and his departure spurred the public conflict over the nomination of Brett Kavanaugh. Kennedy’s legacies are a reflection of the divided political and constitutional culture of contemporary politics.
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Notes
- 1.
For a summary of the competing approaches to reading the Constitution, see Marietta, A Citizen’s Guide to the Constitution and the Supreme Court (New York: Routledge, 2014).
- 2.
“The life of the law has not been logic: it has been experience… The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.” The Common Law 1881.
- 3.
Planned Parenthood v. Casey , 505 U.S. 833 (1992).
- 4.
Kennedy describes the late-term abortion procedure as allowing a doctor to “pierce the skull and vacuum the fast-developing brain” of “an unborn child, a child assuming the human form.” Gonzales v. Carhart 505 U.S. 124 (2007).
- 5.
Others criticized Kennedy’s mention of the possibility that women would come to regret the abortion decision, one of the perceived facts that Kennedy endorsed but others thought had no foundation.
- 6.
Whole Woman’s Health v. Hellerstedt, 579 U.S. ___ (2016).
- 7.
Texas v. Johnson Kennedy concurrence, 491 U.S. 397 (1989) at 421.
- 8.
Krishnas v. Lee Kennedy concurrence, 505 U.S. 672 (1992) at 701.
- 9.
U.S. v. Alvarez, 567 U.S. 709 (2012).
- 10.
Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) at 356.
- 11.
Kennedy also perceived that corporate contributions do not lead to corruption (“this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption” Citizens at 314), again a perceived fact that is deeply disputed.
- 12.
NIFLA v. Becerra Kennedy concurrence, pages 1 and 2.
- 13.
Romer v. Evans , 517 U.S. 620 (1996) at 634.
- 14.
At this time, same-sex marriage was recognized in New York State, but federal law (DOMA) defined marriage as “only a legal union between one man and one woman as husband and wife.”
- 15.
See the discussion of dignity in Chapter 6 on Masterpiece Cakeshop.
- 16.
Lawrence v. Texas , 539 U.S. 558 (2003) at 567, 575.
- 17.
U.S. v. Windsor, 570 U.S. 744 (2013), slip opinion page 22.
- 18.
Obergefell decision, pages 3, 13, 28.
- 19.
Justice Scalia criticized Kennedy’s phrasing in Obergefell as “mummeries and straining-to-be-memorable passages,” comparing his opening sentence to “the mystical aphorisms of the fortune cookie.” Obergefell Scalia dissent, pages 4, 8.
- 20.
Obergefell Thomas dissent, page 1.
- 21.
Roper v. Simmons 543 U.S. 551 (2005) at 560.
- 22.
Casey, 505 U.S. at 851.
- 23.
Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990) at 520.
- 24.
Burwell v. Hobby Lobby Stores, Inc. 573 U.S. ___ (2014), Kennedy concurrence, pages 1–2.
- 25.
Masterpiece Cakeshop oral arguments transcript, 5 December 2017, page 62.
- 26.
Lawrence v. Texas , 539 U.S. 562 (2003) at 578–579.
- 27.
Speech to the Ninth Circuit Judicial Conference, 26 July 2018.
- 28.
Ibid.
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Marietta, M. (2019). Justice Anthony Kennedy Retires (1988–2018). In: Klein, D., Marietta, M. (eds) SCOTUS 2018. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-11255-4_10
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