Justice Kennedy Leaves Mixed Record On Civil Rights

Law360 (June 29, 2018, 11:37 PM EDT) -- Over three decades on the Supreme Court, Justice Anthony Kennedy perhaps became best known for upholding the constitutional right to abortions and to same-sex marriage, but his deference to states' rights and his inclination to take a race-blind approach to legal analysis have complicated his civil rights legacy.

Justice Kennedy, President Ronald Reagan's nominee to the court in 1987, emerged as an unlikely champion of causes generally associated with liberal interests. In 1992, he voted to uphold Roe v. Wade, the court's landmark 1973 ruling legalizing abortion, and one that the Reagan administration had challenged repeatedly.

Justice Kennedy also established a precedential legacy in cases on LGBT rights, notably in his 2013 opinion striking down the Defense of Marriage Act, the federal law that defined marriage as between a man and a woman, and in his ruling two years later that established that same-sex couples have a constitutional right to marriage. His jurisprudence on LGBT rights emphasized both the Constitution's guarantee of equal protection and the fundamental importance of human dignity.

On other civil rights issues, notably on affirmative action and challenges to allegedly discriminatory voting laws, his record has been more mixed. He voted frequently with the court's conservative wing in landmark voting rights cases including Shelby County v. Holder, the 2013 ruling that invalidated portions of the 1965 Voting Rights Act that had required states to obtain federal permission before changing any voting laws.

"Sometimes you can't put two of his decisions next to each other and have them make sense, although of course you could always find a way to draw a distinction between them — and lawyers are very good at that," said Neal Devins, a professor at the William & Mary Law School. "That's not to say he's inconsistent, but his record on civil rights is a more complicated story to tell and have it all make sense together."

Justice Kennedy's legacy on abortion is complex, but his 1992 vote in Planned Parenthood of Southeastern Pennsylvania v. Casey is widely viewed as playing a crucial role in upholding the central principles of Roe v. Wade. In that case, the court considered a Pennsylvania abortion law that imposed restrictions on women and girls seeking abortions. The court ultimately ruled that states could impose only restrictions that did not place "an undue burden" on the right to choose an abortion. Justice Kennedy co-wrote the decision with Justices Sandra Day O'Connor and David Souter.

"In Planned Parenthood v. Casey, he was the pivotal vote to preserve Roe v. Wade, and that in and of itself is significant," said Louise Melling, a deputy legal director at the ACLU. "He was also unique in the way he spoke of dignity and liberty and equal protection interests in the same moment."

But in Stenberg v. Carhart in 2000, and Gonzales v. Carhart in 2007, Justice Kennedy ruled with the conservative justices. In Stenberg, a case in which the court's liberal wing prevailed, the court struck down a Nebraska law that would have criminalized an abortion method involving fetuses past 16 weeks of gestation, unless the pregnancy endangered the mother's life. In his dissent in Stenberg, Kennedy wrote that "the political processes of the state are not to be foreclosed from enacting laws to promote the life of the unborn and to ensure respect for all human life and its potential."

In the 2016 case Whole Woman's Health et al. v. Hellerstedt, however, he voted with liberals to strike down Texas' laws imposing restrictions on abortion clinics in the state.

"He was very concerned about states' ability to regulate on the interests of morality around unborn life," said Amy Myrick, a staff attorney at the Center for Reproductive Rights. "And he believed it was important for states to be able to make moral distinctions between different types of procedures. But we should note that his most recent word on abortion was joining Whole Woman — that was a decision that was essential to keeping abortion rights meaningful."

On LGBT rights, Justice Kennedy established a more uniform record, delivering the court's opinion on four major LGBT cases of the past 25 years.

"Justice Kennedy was the most important justice in the history of LGBT rights in the Supreme Court," said Richard Segal, litigation partner at Pillsbury Winthrop Shaw Pittman LLP. "He provided the single reliable conservative vote, which when coupled with the more progressive justices, established a solid majority in favor of LGBT rights consistently since 1996."

In the 1996 case Romer v. Evans, Justice Kennedy rejected an amendment to the Colorado state constitution that would have repealed and barred local ordinances meant to protect LGBT people from discrimination in housing and employment, among other areas. Justice Kennedy wrote in his majority opinion that such an amendment violated the Fourteenth Amendment's equal protection clause. In Lawrence v. Texas in 2003, the court struck down anti-sodomy laws, with Kennedy writing that "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."

In U.S. v. Windsor, he struck down DOMA, and then, finally, in Obergefell v. Hodges in 2015, the court established that same-sex couples could marry. In that case, Justice Kennedy delivered a poetic affirmation of marriage as a life-affirming institution, and one that should not exclude couples on the basis of their sexual orientation. There again, he affirmed the basic freedoms enshrined in the Fourteenth Amendment's due process clause.

"The nature of injustice is that we may not always see it in our own times," he wrote. "The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning."

The issues of voting rights and affirmative action were where he tended to demonstrate the most internal conflict, appellate attorneys say. He voted with the court's conservative majority in Shelby County v. Holder, the 2013 case in which the court gutted section five of the Voting Rights Act, which had required certain states and counties that had historically discriminated against minority voters to seek permissions before imposing any additional voting requirements. A D.C. federal court had affirmed the section as an important guard against voting discrimination, but the Supreme Court's majority opinion found essentially that times had changed, making the provision outdated. After the Shelby County ruling, several states previously covered under section five implemented new voting laws.

But in Fisher v. University of Texas in 2016, Kennedy voted to uphold an affirmative action program, even writing the majority opinion.

"There was a consistent struggle throughout his jurisprudence about offering race-conscious remedies, but he recognized in some cases that they remain necessary," said Samuel Spital, the director of litigation at the NAACP Legal Defense Fund. "The idea of losing a justice who moderated a full on approach of refusing to acknowledge the persistent salience of race is very troubling."

--Editing by Pamela Wilkinson and Kelly Duncan.

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