Just Destroy His Own Legacy

Did Anthony Kennedy Just Destroy His Own Legacy?

17 legal thinkers argue about why the retiring justice mattered—and what his exit could mean for his most consequential decisions.

By POLITICO MAGAZINE

ike the many controversial Supreme Court decisions for which he provided the decisive fifth vote, the resignation of Anthony Kennedy on the final day of the court’s term has sparked a fierce debate over his legal legacy and the possibility it will be overshadowed by a bitter partisan fight over his successor.

Kennedy, the 81-year-old jurist known as “the sphinx of Sacramento,” authored landmark decisions that enshrined gay rights and redefined campaign donations as free speech, enraging and thrilling both ends of the political spectrum. But it was his tendency over a 30-year career on the Supreme Court to operate in the fraught territory between ideological poles that earned him a reputation as the court’s most consequential swing vote. Now, it’s the timing of his departure, which has handed the president an opportunity to replace him only months before highly consequential midterm elections, that some observers suggest might be the decision of Kennedy’s with the most historic consequence.

He was more liberal on social issues than conservatives might have expected when he was nominated by Ronald Reagan in 1988. But the prospect of a court stocked with five unwavering conservatives has legal scholars wondering aloud whether the Kennedy votes seen as most historically important—by liberals, but also by Kennedy himself—will survive much longer. The right of gays to marry, of women to terminate a pregnancy, of public universities to use race as a factor in admissions all may be operating on borrowed time.

So why did Kennedy matter? And will his legacy survive? We asked 17 top legal thinkers what Kennedy’s real legacy will be. Some say it might be transient. As one of our contributors put it, “His views of constitutional law on those topics are unlikely to outlive him.”

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‘It might very well amount to dust’
John Culhane is professor of law and co-director of the Family Health Law and Policy Institute at Widener Law Delaware.

What is Justice Anthony Kennedy’s legacy? It might very well amount to dust. And it seems he’s fine with that.

Let’s take gay rights, which is inarguably the issue with which Kennedy is most closely associated. Justice Antonin Scalia, who fought bitterly with Kennedy to the last on the issue, acceded to the view that Kennedy was the “Thurgood Marshall” of gay rights. With good reason, because Kennedy’s lodestar principles of “dignity” and “liberty” led him to author all four of the Supreme Court’s major, pro-gay rights decisions. Most notably and recently, in 2015 Kennedy provided the decisive fifth vote in Obergefell v. Hodges, which declared that gay and lesbian couples have a constitutional right to marry on the same terms as everyone else.

Obergefell is now imperiled. As I wrote shortly after the court issued its decision, Chief Justice John Roberts didn’t just express disagreement with the outcome. He stated that it wasn’t even based on the Constitution. The other dissenting justices were, if anything, even more scathing. Replacing Kennedy with a justice to his right could lead to a reversal of that decision, as well as many others, most particularly including a woman’s right to reproductive decision-making. Kennedy knows this, and we should have seen his abdication coming.

This past term saw a Kennedy who had thrown in the towel. Once skeptical of partisan gerrymandering, he joined a majority of the justices in ducking the issue after the Supreme Court had considered several cases that squarely presented the problem. Even when it came to his signature gay rights issue, in Masterpiece Cakeshop, he avoided the tough question of how free expression and anti-discrimination claims should be reconciled. And yesterday, he waved a dismal goodbye in his concurring opinion in the travel ban case, whining that, even if the Constitution had been violated by a ban that was targeted at Muslims, it isn’t the Supreme Court’s job to actually do anything about it.

Resistance will be massive, but Donald Trump is probably going to pick Kennedy’s replacement. Things will get much worse, and “the sphinx of Sacramento” shoulders a fair share of the blame for what’s to come. His lofty, valedictory invocation of “freedom” and “liberty” in the last sentence he authored as a Supreme Court justice has a hollow, sickening sound.

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‘Kennedy was the strongest defender of the First Amendment the Supreme Court has probably ever seen’
Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.

Kennedy spent more than 30 years on the court and for much of that time was the deciding vote on so many controversies, ranging from campaign finance to gay marriage, the Second Amendment to abortion. His judicial philosophy couldn’t be pigeonholed as originalist, progressive, conservative or liberal. His approach is hard to describe in conventional terms. Most years he agreed with Cato’s position more than any other justice—Gorsuch looks to be an early leader on that count now—and so he’s also sometimes known as the court’s “libertarian” justice. There’s some truth to that, even though he often reached results that libertarians liked for reasons that left us scratching our heads.

Kennedy was the strongest defender of the First Amendment the Supreme Court has probably ever seen, whether in the context of political or artistic expression, made by students, workers or any citizens. He was also a careful guarantor of the Constitution’s structural protections for liberty. Think of the Bond v. United States saga, which ultimately vacated a federal conviction that should’ve been pursued by local prosecutors, or his concurrence in Lopez v. United States, which established limits on federal power under the Commerce Clause. Whether federalism, the separation of powers or any of the other aspects of constitutional design, he recognized that they were there as a means to protect and secure our liberties, not a dry technical exercise in political science.

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‘His defense of expressive freedoms ... exemplify his devotion to principle’
Martha Minow is the Carter Professor of General Jurisprudence at Harvard Law School.

Justice Anthony Kennedy once said, “We always tried to get it right.” Although he often supplied the fifth vote in controversial cases that seemed to divide those on the court associated with liberal and conservative views, he rejected the label, “swing vote.” He remarked in 2015, “The cases swing, I don’t.” He consistently articulated a conception of liberty grounded in the dignity and equality of each individual. His authorship of key decisions advancing rights of LGBT individuals reflected deep appreciation of marriage, interpersonal devotion and love as ideals. His defense of habeas corpus even for individuals confined in Guantánamo, and his defense of expressive freedoms even for people who wish to destroy the American flag exemplify his devotion to principle even for—or especially for—people with whom he disagreed.

He always carried a copy of the Constitution and he crafted and distributed a bookmark explaining the values of the rule of law. He respected people and the work of lawyers and courts in service of people and communities. In 2001, in Legal Services Corp. v. Velazquez, he wrote for the court’s majority in rejecting congressional funding restrictions prohibiting private lawyers funded by Congress from challenging existing welfare law; he reasoned that the First Amendment forbade Congress from so limiting private speech and constricting the advocacy of attorneys and the functioning of the judiciary.

In recent years, he drew attention to solitary confinement as “an ongoing injustice of great proportions.” He warned about money in politics and gerrymandering, but had trouble finding principled guidelines that would lend themselves to predictable judicial administration. When she was dean at Harvard Law School, Justice Elena Kagan said: “Justice Kennedy has been widely described as the Supreme Court’s most influential member—the critical ‘swing vote’ on a sharply divided Court. But I think this description fails to capture the essence of what makes Justice Kennedy such an important figure: His independence, his integrity, his unique and evolving vision. Far from swinging between positions defined by others, Justice Kennedy has consistently charted his own course.”

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‘In terms of key opinions … Kennedy’s only rival is the great Chief Justice John Marshall’
Jamal Greene is a professor of law at Columbia Law School.

Justice Kennedy will be known as a key figure in two of the major trends of the Rehnquist Court: a relatively conservative approach to federal power that restricted the ability of Congress to pursue civil rights legislation and other social goals, and a relatively progressive approach to certain social issues, most prominently including the rights of gays and lesbians. He was also the swing vote on a sharply divided court. In terms of key opinions written during one’s tenure, Kennedy’s only rival is the great Chief Justice John Marshall.

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His resignation ‘could end up overshadowing … his legal legacy’
Barry Friedman is the Jacob D. Fuchsberg professor of law at New York University School of Law.

I’m finding it difficult to look backward, instead of ahead. Justice Kennedy was the man in the middle, who kept the already very conservative Supreme Court from moving ever more rightward. And he loved that role and all the attention that came with it. It is regrettable he is giving it up at this particular moment, however, because his resignation launches even more of an ideological war than we already were having—one that could end up overshadowing whatever one might believe (or he might believe) to be his legal legacy. I’ll make a prediction. I think he is likely to be replaced with another very conservative justice; I think the country’s politics are going to move left; and I think we might end up in a situation like 1937, when we had an epic collision between an entrenched conservative Supreme Court and a public who quite disagreed. The public was looking to the government to help pull it out of the Great Depression, and the Supreme Court was striking down both state and federal economic measures like they were clay pigeons on a range. I can’t say precisely what the coming issue(s) will be—I have my guesses, including campaign finance and a variety of civil liberties—but I may have to add a chapter to The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.

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‘He was capable of producing some strikingly creative … rulings’
David Pozen is a professor of Law at Columbia Law School.

Justice Kennedy was not a “judge’s judge.” His opinions were bold, broad and analytically undisciplined; it could be difficult to determine what they had held, as a matter of law, and on what grounds. His prose tended toward the baroque. He trafficked in abstract generalizations (for instance, about the nature of liberty and dignity) and relied on questionable empirical assertions (for instance, about the effects of campaign finance regulations, affirmative action policies and abortion decisions). He was fickle about following the court’s precedents. He never subscribed to any particular interpretive methodology. Being the swing vote for two decades, one sensed, freed Kennedy from certain genre constraints and enabled him to cultivate an unusually independent, even idiosyncratic, jurisprudential style.

Yet precisely because Kennedy was not a judge’s judge, he was capable of producing some strikingly creative and generative rulings. His opinion for the court in Lawrence v. Texas, which fused equal protection and due process principles to overrule Bowers v. Hardwick and strike down a criminal prohibition on same-sex sodomy, is exemplary in this regard. That opinion opened with a much-ridiculed meditation on autonomy and intimacy. “The instant case,” Kennedy wrote, “involves liberty of the person both in its spatial and more transcendent dimensions.” The rhetoric may have been grandiose, but the insight was powerful. By revealing the cruelty of Bowers, forging a new doctrinal path for LGBT rights, and redeeming such an exalted vision of liberty, the Lawrence opinion itself achieved a kind of transcendence rare in constitutional law or, for that matter, in literature.

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‘The scope of Kennedy’s empathies was distinctly limited’
Robert Post is a professor at Yale Law School.

Justice Kennedy will be remembered as an old-style Republican, who did not see constitutional law as a battlefield, who accepted the responsibilities of decision-making without hiding behind the false excuses of impersonal methodologies like originalism, and who on important and contentious issues, like reproductive rights and race-based affirmative action, sought to construct a soft middle ground. On some issues, like gay rights, Kennedy was passionate and prepared to push the court.

In the end, however, as the last few cases of this term illustrate, the scope of Kennedy’s empathies was distinctly limited. He could feel the pain of the devout baker who refused to prepare cakes for same-sex weddings, but he was deaf to the pain of the many Muslims assaulted by Trump’s unspeakable rhetoric. Kennedy was always willing to sympathize with business, and his hostility to business regulation or consumer remedies will be one of his major legacies.

Kennedy’s First Amendment jurisprudence has been expansive and largely thoughtless. I have no doubt but that in subsequent years he will be regarded as one of the major architects of the newly weaponized First Amendment, which has now become a platform to launch Lochner-type attacks on social and commercial regulations.

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‘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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‘American democracy is plainly weaker than it was when he took his seat’
Michael Waldman, president of the Brennan Center for Justice at New York University School of Law, is the author of The Fight to Vote and The Second Amendment: A Biography.

Justice Kennedy overall leaves a mixed legacy. His rulings on marriage equality and LGBT rights are properly considered landmarks. But when it comes to the state of American democracy, Kennedy’s record is consequential and corrosive. American democracy is plainly weaker than it was when he took his seat, thanks to the times he ruled—and the times he failed to act.

Start with campaign finance. Kennedy authored Citizens United. He transformed the case from a technical ruling on election regulation to a blockbuster that upended a century of law. Every gauzy word of it bears his imprint. “The censorship we now confront is vast in its reach,” he warned. “The government has muffled the voices that best represent the most significant segments of the economy.” In his dissent, John Paul Stevens responded, “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”

It’s a fashionable legal take to say that Citizens United did not really matter. It just followed on Buckley v. Valeo and other misguided opinions. Major corporations did not leap to splurge directly on campaign ads. But overall, it was a disaster. It signaled a nearly total deregulation of campaign finance in the United States. The lower court rulings authorizing SuperPACs (such as Speech Now) flowed directly from it. Today, campaigns are increasingly dominated by undisclosed dark money, officeholders spend shocking amounts of time raising funds, and hostile foreign powers realize that our loophole-filled laws offer ample opportunity for mischief. Most serious presidential candidates must first find a billionaire buddy to bankroll a race (or be a billionaire themselves). Only now are we seeing Citizens United’s true costs in corruption and collapse of public trust.

On campaign finance, at least, Kennedy displayed the courage of his convictions. On voting rights cases, he simply went along with other conservatives.

On gerrymandering, it was not his decisions but his indecision that undermined democracy. Here, he knew what was wrong, knew the court could do something about it, and then decided to do nothing. He opined that partisan gerrymandering could be unconstitutional with the right standard, then dithered for over a decade. This term, the court took two major cases on extreme partisan gerrymandering, recognizing that the practice had grown far worse with technology. At oral argument, especially in his sharp queries in the Whitford case from Wisconsin, Kennedy made clear he understood the stakes. The stars at last aligned for a major ruling, one that would have been hailed by citizens of all political views.

Then, an epic judicial shrug. The justices sent three gerrymandering cases down to lower courts for adjustment based on standing. The rulings might have offered a path for success, had Kennedy remained on the bench. Now, from his perspective at least, they are a version of the famous New Yorker cartoon: “Tuesday’s out. How’s never—does never work for you?”

Now, we can expect one of history’s great nomination battles. It may make Bork or Brandeis or Carswell and Haynesworth look like popgun wars. Elections may turn on the debate. Kennedy’s record should remind us that—taking nothing away from other major issues of individual freedom in the court’s hands—the state of our democracy is at stake. On this, at least, I hope Kennedy’s successor does a better job than he did.

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‘He wrote opinions charting a remarkable social change’
Richard Primus is the Theodore J. St. Antoine Professor of Law at the University of Michigan Law School and a former clerk for U.S. Supreme Court Justice Ruth Bader Ginsburg.

Justice Anthony Kennedy is associated with American law’s increasing recognition of rights for LGBT persons, and understandably so. In three landmark cases—Romer v. Evans, Lawrence v. Texas, and Obergefell v. Hodges—he wrote opinions charting a remarkable social change, as LGBT people ceased to be outlaws and even gained the right to marry. He is surely proud of those opinions, and future lawyers will surely think of him in relation to them much as lawyers think of Chief Justice Earl Warren when they think of Brown v. Board of Education. To be sure, that social change would have come even if Kennedy had never served. But important parts of it would not have come as quickly, and to millions of people, that matters. It’s a place in history.

While he served, Kennedy also had an enormous effect on the constitutional law related to the deeply sensitive social issues of abortion and affirmative action. But a legacy is what lives on after one has gone, and without Kennedy on the bench, the law is likely to move sharply away from where he held it. Same-sex marriage might well be secure: A broad and bipartisan social movement drove that change, and that movement remains strong. But affirmative action and the constitutional right to choose abortion are probably now living on borrowed time. Kennedy maintained a certain status quo on those issues for a time, and that mattered a lot to people in the relevant years. But his views of constitutional law on those topics are unlikely to outlive him.

It is in other areas where Kennedy’s service as a justice are likely to have longer-lasting consequences. His decisive votes in cases about campaign finance and the Voting Rights Act helped shape rules of the political game that have serious consequences now and are likely to into the future as well. Under the line of cases associated with Citizens United v. FEC, the wealthiest Americans will have an outsized political influence like nothing seen in generations. And under the line of cases associated with Shelby County v. Holder, state legislatures will have freer rein to slant the political process against minorities than at any time since the civil rights movement. When people in 2040 ask how the American constitutional system is different from what it might have been without Kennedy, decisions like those may loom the largest.

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He ‘laid the foundation for liberty to flourish’
Elizabeth Price Foley is a professor of law at Florida International University.

If there’s one word that could encapsulate Kennedy’s legacy, it would be this: liberty. He understood that liberty is a two-sided coin, preserved by two doctrines—individual rights and limited government—that are often considered unrelated, yet are critically interdependent. On the “individual rights” side of the liberty coin, Kennedy authored key decisions protecting gay rights (Obergefell v. Hodges, Lawrence v. Texas and Romer v. Evans), religious exercise (Masterpiece Cakeshop), free speech by organizations such as labor unions and corporations (Citizens United v. FEC), and extending habeas corpus to Gitmo detainees (Boumediene v. Bush). On the “limited powers” side of the liberty coin, Kennedy penned several important federalism decisions. In Bond v. United States (2011), for example, Kennedy’s majority opinion allowed individuals, not just states, to challenge federal laws based on the Tenth Amendment, declaring: “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.” In City of Boerne v. Flores (1997), his majority opinion limited the reach of congressional power under the Enabling Clause of the Fourteenth Amendment, concluding that the federal Religious Freedom Restoration Act (RFRA) caused “considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens.” Kennedy’s rare insight—that individual liberty begins where government power ends—laid the foundation for liberty to flourish in ways that will be felt far into the future.

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Aside from his opinions on gay rights, ‘he is likely to fade into obscurity’
Sanford V. Levinson is a professor of government at the University of Texas and a member of the American Law Institute.

One should never forget Zhou en-Lai’s comment when asked about the consequences of the French Revolution: It’s much too early to tell. The most obvious part of Anthony Kennedy’s legacy is the entrenchment of gay and lesbian rights. Those will be the Kennedy opinions, along with Citizens United (highly edited) that will be likely to be memorialized in future constitutional law casebooks. Otherwise, like most justices after their retirements, he is likely to fade into obscurity, perhaps like Byron White or Potter Stewart, two long-serving justices whose names are barely known, if at all, to most law students today (and whose opinions are rarely, if ever, the center of discussion).

Though liberals are mourning his departure, it should not be forgotten that he was a dependable ally of what might be called the “Lewis Powell program,” as enunciated in that jurist’s famous letter to the U.S. Chamber of Commerce, to capture the court and produce many more pro-business (and anti-union) rulings. It is fitting that Kennedy’s last important vote was to eviscerate the power of public employees’ unions, and that he had voted earlier in the week to enhance the power of American Express against its competition in the credit card market, a decision denounced by Columbia Law Professor Timothy Wu as exhibiting woeful ignorance of the way that markets actually work and a further weakening of the anti-trust laws. And, of course, he also joined his conservative colleagues in a series of decisions offering grotesquely exaggerated reliance on the Arbitration Act of 1925 in order to deprive ordinary Americans of the effective right to sue large corporations for clear wrongs committed against their customers.

Part of his legacy, of course, has to include Citizens United, a decision that reached the right result with regard to the specific issue before it, but that went far beyond that to grant the wealthy an ever-more distorting role in American politics. Kennedy, like all of his colleagues, had no experience whatsoever in actual electoral politics and has almost no understanding at all of how the American political system actually works. His limited understanding of what counts as “corruption” is perhaps the most terrible part of his legacy.

His repeated emphasis on the “dignity” interests of “sovereign states” also represents a striking misunderstanding of the American tradition of “popular,” instead of governmental sovereignty. Although in an Arkansas voting case several decades ago, he rejected the “state compact theory” adopted by four of his colleagues, in favor of a more national understanding of “We the People,” he nonetheless embraced most of what is truly important in the compact theory and its use to delegitimize many exercises of national power. Thus one of the worst parts of his legacy is a group of “sovereign immunity” cases that function to make it basically impossible for ordinary people to gain redress in federal or even state courts when states refuse to enforce certain federal laws.

One can regret Kennedy’s retirement because of the opportunity it will give a truly terrible president to name his successor for confirmation before an almost totally supine Republican majority in the Senate. Were our politics less dire, we could treat his retirement with more genuinely mixed feelings, including recognition that the 81-year-old justice is entitled to spend his remaining years, probably in California, as he wishes.

Finally, his retirement, after three decades in office, is added grist for the proposition that life tenure for justices is a dreadful policy. We would be far better off if each justice served a fixed 18-year term with no possibility of reappointment. This would ensure that every president gets two nominations during a single term and that no president can name a majority of the court and thus dominate the judiciary into the far future.

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He left how he wanted to be remembered—‘at the end of a term in which he provided the fifth vote for the conservatives’
Abbe Gluck is a professor at Yale Law School.

Justice Kennedy left the court today the way I think he wanted to be remembered, at the end of a term in which he provided the fifth vote for the conservatives in a series of cases that cement his legacy as a libertarian and an aggressive—often controversial—proponent of the First Amendment. But he will of course be remembered too, perhaps even more, for the “other side,” that is, for his many history-changing fifth votes for more progressive decisions, including those on same sex rights, health care and abortion. Less frequently mentioned but as important to Kennedy’s impact on American jurisprudence was his passion for federalism and the way in which he laudably brought back to the court a focus on the ways in which states exert power in our modern national democracy.

Kennedy’s successor may not adopt many of these positions, whether those on the right or on the left, as passionately as he did. But he or she will most certainly move the court further right. And here is where Kennedy’s departure may have the greatest impact—even though his departure should not mean the sea change that it does. The Democrats’ failure to fight effectively for their Supreme Court nominee in 2016 gave us Justice Gorsuch instead of Justice Garland, and that means Kennedy’s departure makes all the difference to virtually every aspect of American law.

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‘Kennedy’s legacy will never recover from [his] tacit acquiescence to … racism’
Corey Brettschneider is professor of political science at Brown University and visiting professor of Law at Fordham Law School. He is the author of the forthcoming book The Oath and the Office: A Guide To the Constitution for Future Presidents.

Justice Kennedy has been lauded for leading the court’s recognition of the rights of same-sex couples, but his vote and decision in this term’s most important case will undercut a picture of him as a champion of justice. In the travel ban case—in the twilight of his career—Kennedy tainted his legacy by refusing to live up to the legal principles he established to fight bigotry.

Notably, in Romer v. Evans, Kennedy led the court in striking down a Colorado plebiscite that had revoked civil rights for gay people. Kennedy argued that because the law was based in bad motivations, specifically anti-gay “animus”—animus evidenced by public words and writing—that it was unconstitutional. That decision, along with another Kennedy penned that struck down bans on gay sodomy, were important building blocks for his majority opinion in Obergefell v. Hodges, which solidified the right to gay marriage.

Kennedy also penned the court’s decision in Lukumi v. Hialeah. In that case, the court struck down an ordinance that discriminated against adherents of the Santeria religion in Florida. In both cases, the presence of some supposedly reasonable motives for a policy did not allow the court to overlook spoken or written evidence of prejudice.

In his opinion in Town of Greece v. Galloway, Kennedy noted that while the government-sponsored prayer the court was considering was constitutional, other government-sponsored prayers motivated by and containing hateful speech or proselytizing language would not be.

Sound familiar? In these cases, and in the recent Masterpiece Cake Shop decision, the court, led by Kennedy, signaled that how lawmakers talk about the laws they pass isn’t some peripheral distraction. It is a central issue in understanding the legality of those laws. Biased language, it turns out, has real consequences.

But according to the court in Trump v. Hawaii, that language apparently didn’t matter when it comes to Muslims subject to Trump’s travel ban. In that case, Kennedy’s very own logic in Romer, Lukumi, Town of Greece and Masterpiece Cake Shop—the same logic that has driven some of his most important decisions—was thrown out the window (although it was embraced in Justice Sotomayor’s eloquent dissent). Yet Kennedy joined Roberts’ opinion anyway. The court acknowledged the presence of the Trump administration’s bigoted motives—but then proceeded to ignore them, denying their centrality to the case—even though Trump’s anti-Muslim statements were far, far worse than the anti-Christian statements uttered by Colorado officials in the Masterpiece Cakeshop case.

In Trump v. Hawaii, instead of standing up for the constitutional values of dignity and equality that he has worked so long to promote, Kennedy was weak and inconsistent, fatally attempting to find “common ground” in a case where there is none. In this case, one side stands for a limited presidency and the values of religious diversity and anti-discrimination; the other side gives racism by our chief executive the force of law.

At the very end of his career, Kennedy—who had crusaded against intolerance—refused to stand up for the constitutional principles he had so powerfully established. No matter how eloquent and powerful his past defenses of dignity and equality may be, Kennedy’s legacy will never recover from this tacit acquiescence to the racism now emanating from our nation’s highest office.

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His ‘greatest strengths were his staunch political independence, and his genuine commitment to liberty and equality’
Ilya Somin is professor of law at George Mason University, author of Democracy and Political Ignorance: Why Smaller Government is Smarter, and an adjunct scholar at the Cato Institute.

Justice Anthony Kennedy leaves behind a mixed legacy. It includes elements that appeal to both sides of the political spectrum. Kennedy’s most famous and influential opinions are probably his rulings in four landmark gay rights cases: Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and—most of all—Obergefell v. Hodges, which struck down laws banning same-sex marriage. He was a key figure in the rapid progress gays and lesbians have made toward legal equality over the past 25 years. But Kennedy also wrote opinions or provided key votes for numerous “conservative” outcomes, particularly in free speech, affirmative action and federalism cases. For example, he wrote the majority opinion in Citizens United, the campaign finance case widely reviled on the left.

Kennedy’s methodology was just as eclectic as the political valence of his opinions. In some cases, he relied on vague and fuzzy standards that made it difficult to figure out exactly what rule his decision establishes or why. Obergefell (despite my agreement with the result) was a notable example. But there are many other Kennedy opinions that are much more rigorous and formal, as in his free speech jurisprudence.

Kennedy’s greatest strengths were his staunch political independence, and his genuine commitment to liberty and equality for people of widely differing backgrounds and views. Hopefully, his successor will follow in his footsteps in those respects, even if not in others.

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‘His greatest legacy will be in sexual freedoms and respect for gays and lesbians’
Saikrishna Prakash is a professor of law at the University of Virginia.

The Kennedy Court is no more. Since the resignation of Sandra Day O’Connor, Justice Anthony Kennedy was most often the swing voter in contentious cases. His jurisprudence had three major facets: a vigorous defense of the Supreme Court’s preeminence in constitutional interpretation, a libertarian streak on matters of sex and speech, and a generally conservative mindset as modified by a protracted leftward drift (a likely byproduct of the so-called “Greenhouse Effect”). Kennedy was far less conservative than his conservative backers had expected and certainly less conservative than Robert Bork would have been. But he was far too conservative for some liberals who, though they were occasionally pleased by his more recent decisions, were distinctly irritated with prevailing on only some hot-button social issues. Ironically, liberals may soon find themselves rather wistful and insist that his successor should be a second Kennedy. His greatest legacy will be in sexual freedom and respect for gays and lesbians. In these two areas, his opinions seem secure because his jurisprudence largely mirrors changes in society. On contested matters, like affirmative action and abortion, the conflict on the court will continue, likely with a new justice to Kennedy’s right. The retirement of an exceptionally civil man will trigger a most uncivil confirmation fight.

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‘The realization of human dignity and the importance of value pluralism are the themes that run most deeply’
Richard H. Pildes is the Sudler Family Professor of Constitutional Law at New York University School of Law.

The realization of human dignity and the importance of value pluralism are the themes that run most deeply to me in Kennedy’s opinions. He used the term “dignity” in his opinions more than any justice on the court since William J. Brennan. That idea is expressed in the cases which will likely be his greatest substantive legacy—those involving the court’s recognition of the constitutional dignity and rights of people regardless of their sexual orientation—but it weaves through his work in less familiar areas, such as the need to remedy overcrowded prisons to protect the constitutional rights of prisoners.

Kennedy also profoundly believed, whether instinctively or self-consciously, in value pluralism, along the lines of the great political thinker, Isaiah Berlin. As a value pluralist, he sought to honor and preserve, as much as possible, the competing and deep values often at stake in court cases—liberty, equality, tolerance, self-government—rather than to rush to an ultimate confrontation in which one of these values subordinates the other. Perhaps fittingly, his opinion just weeks ago in Masterpiece Cakeshop (in which he used the word “dignity” four times) exemplifies this sensibility perfectly: expressing great empathy and sensitivity to the interests of both religiously sincere believers and those of gay and lesbian people, he crafted a decision that respected both sides as much as possible. Skeptical of the use of race in public programs, he nonetheless pulled back from the brink of being a fifth vote for abolishing affirmative action completely, in recognition of the value that diversity and inclusion also play. In what I suspect was the most difficult vote of his career, he decided not to vote to overrule Roe v. Wade¸ which many had expected him to do, but to preserve its core while creating more space for those at odds with Roe to express their views through policy.

Kennedy also saw the court as a balancing force more generally in the political system, when it came to institutional cases as well as ones involving individual rights. He was what I have called a “boundary-enforcing” justice rather than one who cared primarily about bright-line rules and chasing principles all the way down to their analytical bottom. If he thought other institutions or actors had become extreme and gone “too far” in asserting their powers, he was willing to step in, through constitutional law, to assert the importance of a boundary on power—even if it was not possible to reduce the legal principle he applied to a bright-line rule that had clear necessary and sufficient criteria of application. His opinion for the court holding that habeas corpus extended to detainees at Guantánamo Bay, Boumediene v. Bush, is one example. So was his decision holding that when a party with a case pending before a court spends enormous sums to help elect one of the judges, due process requires that this judge recuse himself from the case. Decisions like these are often criticized by dissenting justices and others precisely because they establish a boundary but can’t be expressed in any simple bright-line legal rule. That did not deter Kennedy: If he thought institutions or powerful actors had gone too far in subordinating some set of important, constitutional values, he was willing to see the Constitution as pushing back—even if simple rules for a complex world were not always possible.

Perhaps aptly for a person who saw the world so much through the lens of individual dignity, Kennedy left the court on his own terms, when he could have continued but when he thought his time to bow out had come—with dignity.