Going into this term, liberals had hoped that Anthony Kennedy, the 81-year-old conservative justice who has sided with the left on several historic Supreme Court decisions, would help hold off the rightward trend of the court.
That didn’t happen.
Kennedy, always the subject of intense retirement rumors – who finally announced his decision to leave the court Wednesday afternoon – shuffled right and never sided with liberals in the major 5-4 cases that split down familiar ideological lines.
This term, Kennedy voted with his conservative colleagues in cases concerning issues such as the travel ban, religious liberty, voting rights, arbitration agreements, corporate liability and public sector unions.
“Although there were 19 5-4 decisions, none of those saw Justice Anthony Kennedy siding with the four more progressive justices – as he has done so often in high-profile cases in recent years, such as the gay marriage ruling in 2015,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.
But conservatives haven’t forgotten that Kennedy cleared the way for same-sex marriage in 2015,and he voted with the liberals in 2016 in an abortion case and one concerning affirmative action.
This term, there were two particularly divisive cases where all eyes were on the man who has so often provided the swing vote.
One concerned a baker who refused to make a cake to celebrate a couple’s wedding out of a religious objection to same sex marriage. The case – Masterpiece Cakeshop – brought two strands of Kennedy’s jurisprudence together: LGBT rights and religious liberty.
LGBT-rights groups hoped he’d slam the door shut on the baker in a ruling that would impact businesses throughout the country. Instead, he wrote for a 7-2 court in favor of the baker. The holding was carefully tailored to the case at hand but will have national impact nonetheless.
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But a few days later the court had the opportunity to take up a similar case of a florist for next term. The court did not have the appetite to step in again to rule more broadly. It vacated the opinion that went against the florist and sent the case back down to a lower court in light of the Masterpiece ruling.
In two other cases concerning partisan gerrymandering, the court was asked to develop a legal test to determine when states go too far in drawing lines for partisan gain. While some conservatives argue such issues should be left to the political branches, Kennedy held open the door to legal challenges back in 2004.
Would this be the year for Kennedy to articulate a standard rooted in equal protection or free speech? Critics of extreme partisan gerrymandering in both parties were let down when the court dodged the big question in both cases. And again, faced with the opportunity to take up a similar challenge next term in a North Carolina case, the justices sent the issue back down to the lower courts.
And even though Kennedy didn’t side with them very much this term on the contentious cases, liberal justices are undoubtedly relieved that he decided to stay on the bench. For now.
Last year, in fact, an audience member asked Justice Ruth Bader Ginsburg an odd question during an appearance: Who should eat more kale in Washington?
She didn’t miss a beat: Anthony Kennedy.
This story was updated following Kennedy’s decision to retire.
