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Justice Kennedy Turns Into a Liberal

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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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.

With the presidential election coming and the composition of the Supreme Court at issue, Kennedy’s path from Reagan-appointed conservative to decisive liberal justice deserves renewed scrutiny. What happened, exactly? And why is it that since the 1950s, no justice has become more conservative except arguably Chief Justice Warren Burger?

In those years, numerous Republican appointees have gradually become more liberal. A partial list would include Kennedy alongside John Marshall Harlan, Harry Blackmun, Lewis Powell, John Paul Stevens, Sandra Day O’Connor and David Souter. 

None of these was a true political conservative on appointment, and their movement could be characterized as passing from moderate, Rockefeller Republicanism to liberalism. Nevertheless, movement was certainly visible.

And lest it be said that the intensity of confirmation battles and greater public scrutiny have eliminated the possibility of such movement, there is also the case of Chief Justice John Roberts. The current chief is far from being a liberal, of course. But although perceived by conservatives as a safe choice when he was selected, Roberts has gradually turned into something more like a Rockefeller Republican -- in an era when such a creature, strictly speaking, no longer exists.

It should be noted that the leftward drift over the course of judicial careers wasn’t the norm earlier in constitutional history. Roosevelt appointees Felix Frankfurter, Robert Jackson and Hugo Black all moved to the right over the course of their careers.

All three men began as staunch New Deal liberals. Their reasons for the rightward drift varied. Black -- often described as the most radical U.S. senator before he was appointed -- moved to the right late in life, mostly in reaction to the upheavals of the late 1960s. Frankfurter had advocated judicial restraint when he was a professor and property-protecting libertarians controlled the Supreme Court. He couldn’t accept liberal activism, which struck him as hypocritical. Jackson was motivated by personal hatred of Black and by what he considered the lesson of the Nuremberg trials, where he was chief prosecutor -- that a liberal democracy must restrict freedom of speech and assembly to avoid being overrun by fascism and communism.

The leftward movement of the more recent justices has been less overtly ideological. In many cases, most notably O’Connor’s, their liberalism consisted mainly of refusing to overturn liberal precedents set by the Warren court. In a sense, such decisions could be read as judicial restraint, which is inherently a form of conservatism.

Stevens and Souter were of a similar ilk, although each moved further left than O’Connor ever did. Unlike O’Connor, who sought compromise and thrived by being the decisive swing justice, Stevens and Souter gradually moved left by committing themselves to certain jurisprudential principles and trying to apply them consistently. Religious liberty was also a central concern for both, who were dismayed by the transformation of the Republican Party in the aftermath of the rise of the evangelical right.

Blackmun and Kennedy went further than that. For each, the process was spurred by the existence of an issue of particular importance to him in which he created new law. For Blackmun, who had been counsel to the Mayo Clinic, the issue was abortion; for Kennedy it was gay rights. Once the justices had gone liberal on the single issue, they were embraced by liberals and excoriated by conservatives for his respective commitment to creating new rights. That brought them further into the liberal camp.

Roberts, meanwhile, has balked at overturning major Obama administration legislation, likely because it would make the Roberts court a byword for activism -- and he is the last living devotee of judicial restraint.

Kennedy has tried to cling to conservatism in the area of federalism, and for the most part has managed to do so. And this term, Kennedy presumably cast a nominally conservative vote in the immigration case, Texas v. U.S., which was affirmed by a divided court that didn’t report its votes.

But a vote against unlimited executive power isn’t necessarily constitutionally conservative, as we saw during George W. Bush's presidency when liberals disfavored executive authority and as we would doubtless see again if Donald Trump were elected president. Kennedy provided the decisive liberal vote to extend constitutional rights to Guantanamo detainees.

This leaves the question of why the court’s liberals haven’t recently moved right. The best answer is that there hasn’t over the course of their careers been a national swing to the left, either political or cultural, that might have alienated them from their roots in Democratic Party liberalism.

None of the liberal justices was horrified by gay rights, the only area in which constitutional rights have truly expanded since the early 1970s.

Yet new issues do make for new constitutional perspectives. Liberals used to favor religious exemptions. Now the court’s liberals, like much of the Democratic Party, are reconsidering that position in the light of the right’s invocation of religious liberty to get exemptions from laws on contraceptive care and gay rights.

This makes them more “conservative” -- because the right’s position on religious liberty is really liberal. But that’s a change in terms, not a change in allegiance. For the court’s current liberals to go conservative, we would have needed a Bernie Sanders presidency.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
James Greiff at jgreiff@bloomberg.net