Justice Anthony Kennedy: The Supreme Court’s ‘Swing Vote’ Retires

National Catholic Register, 28 June 2018

In his last dozen years on the court, there was no more powerful public official in America. He alone decided, in case after case, what U.S. law would be on the most contested of public questions.

On two signature issues of the sexual revolution — abortion and same-sex “marriage” — the United States of America has an extreme position by global standards. And it is unique in holding that those positions are guaranteed by the Constitution, as opposed to legislative statute.

That is the principal legacy of Justice Anthony Kennedy, who announced his retirement June 27 after 30 years on the Supreme Court.

Justice Kennedy was an unlikely figure to dominate the Supreme Court as the swing vote, but as two four-vote blocks emerged on the court, conservative and liberal, his vote tipped the balance in numerous 5-4 decisions. In his last dozen years on the court, there was no more powerful public official in America. He alone decided, in case after case, what U.S. law would be on the most contested of public questions.

He was Ronald Reagan’s third choice to fill a 1987 court vacancy. The first choice, Robert Bork, was a brilliant legal scholar and conservative judge, whose qualifications were beyond doubt. But his conservatism was seen as a threat to the unlimited abortion license of Roe v. Wade, and abortion’s greatest champion, Sen. Ted Kennedy, D-Mass., led an attack upon the judge so vicious and unprecedented that the verb “to Bork” became shorthand for a politics of personal defamation and scurrilous vilification.

Bork was defeated, inaugurating the new era of incivility in politics so often decried today. Reagan — after his second choice withdrew — then nominated Anthony Kennedy, a safe choice from California. An afterthought amid political exhaustion, Kennedy was thought by nobody in 1988 to be the critical man who would preserve abortion rights and establish the right to marriage between persons of the same sex.

Thus the actions of one Catholic Kennedy, Ted, led to another Catholic Kennedy, Anthony (no relation), ascending to the court. In 1992, the second Kennedy would preserve what was to become so dear to the first — the constitutional right to abortion.

In 1992, Planned Parenthood v. Casey the federal government asked the court to overturn Roe v. Wade. There were five justices ready to do so. It was discovered in the papers of the late Justice Henry Blackmun — author of Roe itself in 1973 — that Kennedy was the fifth vote to overturn, but he then changed his mind, preserving American’s extreme abortion license. From that time onward, Kennedy was the key vote that codified in law the sexual revolution.

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