Justice Kennedy Turns Into a Liberal

Supreme Court Justice Anthony Kennedy’s vote to reaffirm the validity of affirmative action in higher education admissions and to give bite to abortion rights mark the endpoint of his near-complete transformation into a constitutional liberal.

Last year’s gay marriage decision, which Kennedy wrote, was his high-water mark as a creative inventor of new constitutional rights. But Kennedy had expressed skepticism of affirmative action in the past. And while his vote in the 1992 Casey v. Planned Parenthood had blocked Roe v. Wade from being overturned, it weakened Roe’s rights-oriented logic. For Kennedy to write the opinion that will become the new affirmative action precedent, and to join the opinion that makes cost-benefit analysis the new measure of whether state laws violate abortion rights, suggests adherence to a liberal constitutional agenda.