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Anthony Kennedy Left the Court As an All-In Ally of Donald Trump, Paul Ryan, and Mitch McConnell


I observed when Anthony Kennedy delivered a life-tenured Supreme Court seat to Donald Trump that he was often misdescribed as a “libertarian” when in fact he was a country-club Republican, with the emphasis on Republican. Mark Graber has a good post on this theme. The Republican nominees on the Supreme Court reflect the two ways moderate Republicans of a previous generations have broken. Some, like John Paul Stevens and David Souter, broke completely with the Republican Party and became relatively orthodox liberals. Others, like Kennedy, stayed, and ultimately go the full Trump:

Anthony Kennedy never left the Republican Party. He was a sound Republican when nominated by Ronald Reagan and as sound a Republican when he allowed Donald Trump to choose his replacement. Kennedy never wavered in his commitments to constructing a constitutional politics that favored the GOP. From Bush v. Gore (2000) in his early years on the Court to Shelby County v. Holder (2013) in his later years, Kennedy could be counted on as a solid vote for Republican political interests. He was as friendly to Republican business interests as Scalia, Roberts or any other Republican appointed after Sandra Day O’Connor (who was no slouch on these matters).

What some commentators insisted was an independent streak reflected no more than Kennedy’s commitment to the Republican Party of Charles Koch, whose political and business interests gained Kennedy’s unwavering support, rather than the Republican Party of Donald Trump. The Koch’s are far more committed to busting unions and ending Obamacare than fighting the culture wars. Far more than any other justice on the Supreme Court, Kennedy implemented the Koch agenda. He would deny millions healthcare in the name of an abstracted federalism and never met a union busting tactic he could not endorse. Both Kennedy and Koch understood that professional suburban Republicans are as inclined to terminate pregnancies and to prefer romance with members of the same sex as their counterparts in the Democratic Party. As the Fortune 500 became more sympathetic to mild race based measures, so did Kennedy. The affirmative action plan Kennedy upheld in Fisher v. University of Texas (2016) increased enrollment from the same affluent suburbs that spawn Republicans most committed to the Koch business agenda.

Kennedy’s Koch-Republicanism obviously accounts for his mostly terrible voting and writing record: authoring one of the worst opinions in the history of the Supreme Court and providing a fifth vote for another, consistently voting in favor of business interests and against most civil liberties and consistently against voting rights. But it affected even the handful of good opinions he’s most famous for.

On its face, Kennedy and O’Connor’s “undue burden” standard was considerably worse than Roe‘s trimester framework. And as it was applied, it was even worse than that. There’s no rational reason why spousal notification would qualify as an “undue burden” but mandatory waiting periods didn’t, but it’s not a coincidence that the one regulation Casey struck down — the only one Kennedy voted to strike down between 1992 and 2016, as the state regulation of abortion exploded — was the one that would affect affluent women as much or more than poor women. Kennedy finally voting to strike down an extreme TRAP law can now be safely placed in the “too little, too late” file, and the more than two decades that Kennedy allowed regulations that make it difficult or impossible for many non-affluent and/or rural women to obtain abortions will allow the Trumpified Court to effectively overrule Roe while keeping the political costs to a minimum.

There’s a similar problem with much of Kennedy’s LBGT jurisprudence. Lawerence was a good opinion — while not a libertarian, Kennedy is more comfortable with the language of individual freedom than equality. But his equal protection decisions are another matter. They’re often attacked for their purple prose, but as Adam Winkler and Kent Greenfield point out, that’s not really the problem. The problem is his increasingly twerpish refusal to clarify the status of LBGT people under equal protection law. In Romer, it was forgivable — claiming you’re applying rational basis scrutiny when you’re really not is, for better or worse, how doctrinal lines have sometimes started. But by the time of Windsor and Obergefell, his vague flirting with various rationales while refusing to ask one to the prom — when he clearly had the votes for any opinion that would apply any kind of heightened scrutiny — was just ridiculous. How much of this is explained by Kennedy’s muddled thinking and how much was Kennedy’s concern that applying heightened scrutiny would interfere with the ability of Christians to discriminate against LBGT people I don’t know, but either was it was irresponsible, failing to do a critical part of his job.

Anthony Kennedy had a position of great power, and for the most part he used it badly. And even when he cast better votes than another Republican nominee might, he was still a contemporary Republican at bottom.

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