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Has Justice Kennedy Become a Liberal?

By Casey C. Sullivan, Esq. | Last updated on

Justice Anthony Kennedy has long been the Supreme Court's swing vote, usually swinging a little right of center. Though a Republican and a Reagan appointee, Kennedy has never been as ideologically rigid as some of his more conservative colleagues. He's joining the conservative majority one day, then penning groundbreaking gay rights opinions on the next.

But if Justice Kennedy has been hard to pin down in the past, the Court's most recent term might have made it a bit easier to box him in. Could this be the term Justice Kennedy came out as a liberal?

Kennedy's Consistent Inconsistency

Ralph Waldo Emerson probably wasn't writing about Justice Kennedy when he said that "a foolish consistency is the hobgoblin of little minds," but he might as well have been. And if Emerson was right, Kennedy's mind was vast indeed. Over his nearly three decades on the Court, Justice Kennedy has developed a jurisprudence that is famously hard to predict.

He joined the plurality opinion in Planned Parenthood vs. Casey, for example, reaffirming Roe v. Wade. But he then repeatedly voted to uphold restrictions on abortion in subsequent cases. He has written all of the Court's most important gay rights cases, from Romer v. Evans to Obergefell, but has also supported private groups' rights to exclude gays and lesbians. He's repeatedly agreed with college affirmative action in theory, but only once has he voted to uphold such programs.

There's a logic to these rulings, but not one that's easy to predict. "Kennedy is an instinctive, not an ideological, judge," Garret Epps wrote in the Atlantic at the end of the term. "Those instincts, by and large, are profoundly conservative," Epps says. But given the most recent term, some are starting to disagree.

Justice Kennedy's Liberal Term

If Justice Kennedy has moved left, there's no better evidence than the outcomes of Fisher II and Whole Woman's Health, the two blockbuster cases of the last term. In Fisher II, Justice Kennedy finally found a race-conscious university admissions program he could support. Race-conscious admissions programs such as the one used by the University of Texas do not violate the Constitution's Equal Protection Clause, Kennedy wrote for the majority.

It was a dramatic shift. Kennedy had been primed to strike down the program when it came before the Court four years prior, according to reports. He'd strongly dissented from 2003's Grutter v. Bollinger, arguing that the Court had given too much deference to the University of Michigan Law School's determinations. And here he was, not only upholding a similar program, but being quite deferential himself.

That decision was followed four days later by Justice Kennedy's vote to strike down Texas's restrictions on abortion providers, in Whole Woman's Health. While Justice Kennedy has never been anti-abortion, he has often been willing to uphold abortion restrictions. Here, he took the opposite tack, ruling that Texas's restrictions unduly burdened a woman's constitutional right to abortion.

Is Kennedy a New Man?

Taken together, these two decisions provide strong evidence that Justice Kennedy is evolving as a jurist. But they're not the only evidence. Justice Kennedy stood by the Court's conservatives in the split over President Obama's immigration plan, resulting in a deadlocked decision that effectively tanked the President's hope of immigration reform. And he likely engineered a compromise non-decision in Zubik v. Burwell, urging the government and religious employers to work out their differences over Obamacare and contraception coverage themselves.

While he definitely sided with the Court's liberal wing repeatedly this term, a new term could see him swinging the opposite direction once again.

So, perhaps Kennedy is on a liberal kick. Or perhaps he's just being his typical, inscrutable self.

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