In 2016, in Whole Woman’s Health v. Hellerstedt, Justice Kennedy joined the court’s four liberals to strike down parts of a Texas law that would have drastically reduced the number of abortion clinics in the state, leaving them only in the largest metropolitan areas.
That same year, he wrote the majority opinion in Fisher v. University of Texas, upholding a race-conscious admissions program at the state’s flagship university.
Both decisions would almost certainly have come out differently had Justice Gorsuch, Mr. Trump’s first appointee, and Judge Kavanaugh been on the court.
“The court’s jurisprudence on affirmative action and abortion have been administered last rites many times,” Professor Driver said. “But if Kavanaugh is confirmed, it is virtually assured that they will be extinguished sooner rather than later.”
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