Getty Anthony Kennedy
Justice Anthony Kennedy has announced that he is retiring from the Supreme Court, which gives President Donald Trump another Supreme Court Justice that he can nominate. How will this affect Supreme Court rulings? Is Justice Kennedy liberal or conservative? Does he tend to lean more Democrat or Republican? Read on for more details.
Although often considered a conservative justice, Kennedy has leaned liberal in a number of historic Supreme Court decisions, CNN reported. But he’s also sided with conservatives in some major 5-4 cases. So in many ways, he’s been a bit unpredictable, even though he was originally appointed to the bench by former President Ronald Reagan. He has voted on both conservative and liberal decisions. If replaced by a more staunchly conservative Justice, it could move the Supreme Court on a more right-leaning path.
Kennedy has been the swing vote on a number of issues in the Supreme Court, ranging from abortion to gay rights, capital punishment, and affirmative action, USA Today reported. He also sided with the more conservative judges in other cases related to topics concerning travel bans, religious liberty, voting rights, and unions.
Here are just a few examples of how his decisions don’t squarely put him in one camp or the other.
He Wrote the Opinion Granting the Constitutional Right for Same-Sex Marriages
Kennedy voted for same-sex marriage in 2015 and he wrote the historic opinion on gay marriage, which granted the constitutional right for same-sex marriage across the country. He wrote, in part: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were.”
He Believed Roe Resolved the Abortion Issue, But Also Believed Protesters Should Be Able to Leaflet Outside Abortion Centers
He also sided with liberal justices in a 2016 abortion case and in an affirmative action case. On the issue of abortion, Kennedy believed that Roe definitively resolved the abortion issue and he supported upholding Roe. But in an abortion free speech case in 2000, he disagreed with the majority opinion, stating that a pro-life activist should be able to leaflet outside an abortion center and approach people.
He Sided with the Baker Who Wouldn’t Make a Cake for a Same-Sex Couple, Based on the Baker’s Religious Beliefs
In the recent Supreme Court case where a baker refused to make a cake for a same-sex couple’s wedding, he sided with the baker. Anthony’s decision rested on the conclusion that the Colorado agency that ruled against Jack Phillips had treated him too harshly because of his religious beliefs, SCOTUS blog reported. Anthony wrote that Phillips had faced a tough decision because he would need to use his artistic skills to make an expressive statement that was inconsistent with his religious beliefs. Kennedy concluded that a decision about when Phillips’ right to exercise his religion should be limited needed to be made in a proceeding that wasn’t hostile to his religion.
Later, the Supreme Court vacated a case regarding a florist and a same-sex couple, sending it back to the lower court.
He Voted to Uphold the Travel Ban, But Was Critical of Trump
And just this week, Kennedy voted to uphold the travel ban, although he also criticized Trump. He wrote: “There are numerous instances in which the statements and actions of government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects.” He said there was stronger justification for the travel ban, but, he wrote: “An anxious world must know that our government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”
He Defended Obama’s Health Care Plan, Voted Against the Death Penalty for Juveniles, & Supported Affirmative Action
Meanwhile, back in 2015, Kennedy defended former President Barack Obama’s health care plan, agreeing that subsidies could be paid to exchanges run by the federal or state government. And he also agreed to preserving affirmative-action policies at public universities, authoring the majority opinion in a surprising decision. He also voted to strike down excessive sentences for juveniles and intellectually disabled. In one opinion he wrote: “Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.”
He also voted in support of requiring states to shrink overcrowded prisons. He wrote: “The court-mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights and is authorized by the PLRA.”
He Agreed That Hate Speech Is Protected by the First Amendment
As recently as 2017, Kennedy agreed that there is no hate speech exception to the First Amendment. Hate speech is still free speech. A term or phrase deemed offensive is still protected as free speech. He wrote in an opinion that concurred in part: “A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all.”
He Believed Evidence Obtained from Careless Record Keeping Could Still Be Used Against a Defendant
But in 2009, he agreed that evidence obtained from an unlawful arrest that was based on careless record keeping could still be used against a defendant. He agreed with an opinion written by Chief Justice Roberts that the exclusionary rule should be reserved for deliberate or grossly negligent conduct.
As you can see, Kennedy is a bit unpredictable in his decisions. If President Donald Trump chooses a more strongly conservative replacement, he may move the Court much more to the right.
