Geoffrey Stone on Justice Anthony Kennedy’s Legacy

Did Anthony Kennedy Just Destroy His Own Legacy?

‘He has undermined much of the good he has done’
Geoffrey R. Stone is the Edward H. Levi Distinguished Professor of Law at the University of Chicago.

When President Reagan appointed Anthony Kennedy to the Supreme Court, the institution was already considered quite conservative. With his appointment, seven of the nine justices had been appointed by Republican presidents. But by current standards, that Court was quite moderate. Indeed, at that time there was only one justice—Antonin Scalia—who was as conservative as four of the current justices: Roberts, Alito, Thomas and Gorsuch. Over time, and within that increasingly ideological framework, Kennedy came to be seen as the court’s swing vote. Nonetheless, in controversial cases he voted with the very conservative justices roughly two-thirds of the time. Indeed, his legacy includes casting the deciding vote in a broad range of very conservative decisions, including those striking down laws regulating abusive campaign spending, laws protecting voting rights, laws permitting affirmative action and laws regulating guns, to name just a few. On most issues, Kennedy was very conservative and, as such, did serious harm to our nation.

To his everlasting credit, though, Kennedy voted to support the right of women to decide for themselves whether or not to carry a pregnancy to term and the rights of gays and lesbians. To this extent, Kennedy made an enormous contribution to the fundamental values of our nation. But now that he has stepped down and thus given Donald Trump and the Senate Republicans an opportunity to replace him with another archconservative justice, he has undermined much of the good he has done. This is especially disconcerting in light of the unconscionable behavior of Senator Mitch McConnell and Senate Republicans to block the confirmation of Chief Judge Merrick Garland in order to manipulate the ideological makeup of the Supreme Court. If for no other reason than that, Kennedy should not now have left the court and enabled the Republican right to gain absolute control over the highest court in the land.

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