Here are the issues where Justice Anthony Kennedy—the ostensible “swing vote” on the Supreme Court—fairly consistently votes with his more liberal colleagues: gay rights, the death penalty, Guantanamo Bay.
Now here are just a few issues where Kennedy votes as a reliable conservative: campaign finance, workplace discrimination, affirmative action, health care, religion, class actions, forced arbitration, whether George Bush or Al Gore should be president, public school segregation, voting rights, partisan gerrymandering, and abortion.
The last item on that list may surprise a few people, since Kennedy did vote in the 1992 case Planned Parenthood v. Casey, that “the essential holding of Roe v. Wade should be retained and once again reaffirmed.” But Casey also significantly rolled back the right to choose an abortion that was originally recognized in Roe, and it is the only case where Kennedy even arguably cast a pro-choice vote. In every other Supreme Court case Kennedy has ever heard concerning a restriction on abortion rights, he has always voted to allow the restriction to go into effect.
So, if you want to lay odds on what will happen the next time a supporter of abortion rights brings a case to Kennedy’s courtroom, the smart money says that he will almost certainly vote to narrow the right to choose—just as he will vote with his conservative colleagues on a myriad of other issues. The current Supreme Court is not, as it is often perceived, a cabal of four conservatives matched up against four liberals, with Kennedy holding the balance of power in between. The Supreme Court is made up of four conservatives who don’t much care for gay rights and one conservative who thinks gay people are cool but he doesn’t know how far to take it.
In short that means this: If you are a liberal, and you aren’t trying to marry your same-sex partner, you should probably try to keep your case away from the justices.
Liberal lawyers, however, have not always heeded this advice. Consider the court’s recent decision in Town of Greece v. Galloway, which upheld a town council’s practice of opening legislative sessions with mostly Christian prayers. Kennedy has long complained that his liberal former colleagues show an “unjustified hostility toward religion.” He also believes that the long-standing ban on government endorsements of religion “is flawed in its fundamentals and unworkable in practice.” Yet Kennedy was powerless to do anything about the decisions he disagreed with until 2006, when President George W. Bush replaced the moderate conservative Justice Sandra Day O’Connor with the ultraconservative Justice Samuel Alito. Now, there are almost certainly five justices who share Kennedy’s views on religion.
So why on Earth would a team of lawyers who support the idea of a wall of separation between church and state give Kennedy the perfect opportunity to blow a hole in it? Town of Greece was originally filed in 2008, two years after Alito joined the court.
The same can be said about Schuette v. BAMN, a challenge to Michigan’s ban on affirmative action. This ban was enacted in response to a 5–4 decision by O’Connor, which upheld the University of Michigan Law School’s affirmative action program. When Alito replaced O’Connor, he gave the court’s conservatives the fifth vote they needed to end race-conscious admissions programs in their entirety. Though these five conservatives recently resisted the temptation to abolish the University of Texas’ affirmative action program outright, it is doubtful that decision was anything more than a temporary stay of execution.
And yet, just months after Alito joined the court, affirmative action supporters filed a lawsuit challenging Michigan’s ban on the practice. Did they seriously think they could win?