Liberals have often, though not always, found themselves disappointed by Kennedy's rulings in recent 5-to-4 cases. Earlier this year, in Citizens United v. FEC, he provided conservatives with the needed fifth vote to strike down major portions of the McCain-Feingold Bipartisan Campaign Finance Reform Act of 2002, a highly popular law since its enactment, as unconstitutional under the First Amendment. (Restrictions on corporate and union political expenditures, he wrote in the Court opinion, are by nature restrictions on freedom of speech; Justice Stevens dissented stingingly, and congressional Democrats widely saw the ruling's inherent assertion that money equals speech as preposterous.) Last year in Ricci v. DeStefano, Kennedy invalidated the City of New Haven's decision to discard a firefighter promotion exam on the basis that it had resulted in a racially imbalanced outcome, in another controversial 5-4 decision. In 2008, he joined Justice Scalia's opinion in D.C. v. Heller, which for the first time acknowledged a federal right to firearms possession without regard to one's service in a militia. The previous year, Justice Kennedy upheld the Partial-Birth Abortion Ban Act of 2003's constitutionality, ruling with the Court's four conservatives that its prohibiting a specific abortion procedure (intact dilation and extraction) did not place an undue burden on women seeking an abortion and thus did not run afoul of the Court's major abortion precedents, Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The case was Gonzales v. Carhart.
Liberals complain that Kennedy's jurisprudence represents a move to the right from Justice O'Connor's (Justice O'Connor preceding Kennedy as the Court's perceived swing vote, though Kennedy has also been considered a swing vote for the past 15 years or so). In some respects, O'Connor was definitely more a judicial liberal than Kennedy, particularly in her last decade on the Court. But in others, the data may surprise those progressive-minded individuals who think nostalgically of O'Connor's tenure and see Kennedy allying with Chief Justice Roberts more often than with any other member. On several major issues, Kennedy has managed consistently to not just frustrate, but infuriate, conservatives. In a considerable number of cases during their joint tenure on the Court, Kennedy stood to O'Connor's left, providing liberals with the fifth vote even when they could not get what they wanted from O'Connor.
Looking at their lifetime Martin-Quinn scores, the two Justices seem roughly equivalent. O'Connor's lifetime score was 0.88, placing her clearly in the moderate-conservative category. She began her service a reliable conservative vote, with a score of 1.5 for the 1981 term, but ended in the dead center of American jurisprudence, with a score of 0.08 for the 2004 term and -0.03 for the 2005 term that she did not complete. Perhaps surprisingly, Kennedy's lifetime score as of the 2008 term end was 0.8, a smidgeon to the left of O'Connor. He began as a conservative, with a score of 1.15 for the 1987 term, but at that time O'Connor was still at 1.51. During the 1990s, both Justices moved toward the center, trading year-to-year as the Court's more centrist member. For the 2008 term, Kennedy's score was 0.59, a bit below his lifetime average so far of 0.8 (we'll have to see if that holds for the 2009 term, as he has yet to make a major liberal ruling this term). So O'Connor was not necessarily less conservative than Kennedy, at least not in the aggregate. Reportedly, she was much hastier to end the Florida recount in Bush v. Gore than Kennedy, who agonized over the decision. Of course, O'Connor did have a history in Republican politics, unlike the rather apolitical Kennedy.
So the real question is: on which issues was O'Connor more conservative than Kennedy, and on which was she more liberal? Specifically, cases in which the outcome was 5-4 and the two were on opposite sides tell us a lot about how the Court has changed and will continue to change without O'Connor.
It seems clear that Kennedy as swing vote represents a rightward turn on issues of affirmative action and racial discrimination. O'Connor did join a 5-4 conservative ruling on affirmative action, Adarand Constructors v. Pena in 1995, which declared that race discrimination, even in favor of racial minorities, is subject to the judicial strict scrutiny test (which is almost always a fatal standard for government decisions; Korematsu, the first use of strict scrutiny, is one of the only examples of a government rule overcoming the strict scrutiny burden). But she also provided the fifth vote to uphold college admissions affirmative action in 2003's Grutter v. Bollinger. Kennedy dissented in this case, and he is thought to take a libertarian viewpoint on affirmative action (that the time for activist government remedies to race discrimination has passed and that such plans now run counter to the idea of an equitable and colorblind society). Affirmative action advocates should definitely worry about the prospects for a new case of this nature arriving on the Court's docket, considering Kennedy would now decide the outcome, and he is, after all, the author of the Ricci decision.
In another area, campaign finance, Kennedy's conservatism has already fundamentally changed the relevant case law. Prior to January's Citizens United decision (which, as I said, was written by Kennedy, and for the first time declared corporate political expenditures protected by the First Amendment), campaign finance reform's constitutionality rested on two prior rulings upholding the right of governments to regulate campaign spending. In Austin v. Michigan Chamber of Commerce (1990), a 6-3 decision in which O'Connor, Kennedy, and Scalia all dissented, Michigan's campaign finance law was upheld in an opinion by Justice Thurgood Marshall (joined by Justices across the spectrum, from liberals William Brennan, Harry Blackmun, and John Paul Stevens to conservative Chief William Rehnquist and moderate conservative Byron White). By 2003, O'Connor had presumably changed her mind on the subject, because in McConnell v. FEC she upheld the exact law that Citizens United gutted, the McCain-Feingold Act, as constitutional under the Austin precedent, while Kennedy dissented. Note that Kennedy's relatively laissez faire outlook on the First Amendment extends to other areas of free speech law, however, often leading him to left-leaning decisions. Kennedy provided the fifth vote to strike down Texas' flag burning statute in Texas v. Johnson (1989); O'Connor dissented. He also struck down anti-indecency provisions of the Communications Decency Act of 1996 in the 1997 Reno v. ACLU decision; O'Connor wrote a concur/dissent in that case.
On abortion, Kennedy's rulings have also been more conservative than O'Connor's, though he too supports the basic Roe precedent and wrote the Solomonic controlling opinion in Casey with O'Connor and Justice Souter. His opinion in Gonzales v. Carhart upheld the federal law banning "partial-birth abortion," while O'Connor had joined the liberals to strike down a similar ban in Nebraska in Stenberg v. Carhart (2000). Kennedy had dissented then, in keeping with his later ruling. Despite her Republican politics, O'Connor had feminist reasons for supporting a generous interpretation of the abortion right, seeing conservative objections as imposing upon a woman's right to control her own body. Kennedy, a devout Catholic, sees abortion in a far more muddled way, and is willing to accept most restrictions on the practice.
But if the loss of O'Connor has damaged liberal positions on race discrimination, campaign finance, and abortion, it has done little in other areas. O'Connor was a strong states' rights and limits-on-Congress advocate in federalism cases, dissenting from such Court decisions as South Dakota v. Dole (1987), upholding the federal government's right to withhold highway funds from states not implementing a drinking age of 21, U.S. Term Limits, Inc. v. Thornton (1995), striking down state-imposed term limits on members of Congress as unconstitutional, Clinton v. City of New York (1998), striking down the presidential line-item veto, and Gonzales v. Raich (2005), validating Congress' right to ban cannabis even where states have allowed its usage (e.g. medicinal marijuana). She also dissented from the highly controversial Kelo v. City of New London decision in 2005, which declared that governments can use eminent domain under the Fifth Amendment to take private property not just for government/publicly financed use, but for private economic development as well.
Kennedy, on the other hand, voted with the majority, or himself constituted the crucial fifth vote, to strike down term limits and the line-item veto, uphold federal supremacy in cannabis laws, and allow this use of eminent domain. Kennedy voted with O'Connor to rein in Congress in such cases as United States v. Lopez (1995), Printz v. United States (1997), and United States v. Morrison (2000), but he is hardly the committed federalist O'Connor appeared to be. In the 1995 case Vernonia School District 47J v. Acton, Kennedy voted with five other Justices to approve a school district's random drug testing policy; O'Connor dissented, along with Justices Stevens and Souter. While some have characterized Kennedy as more "libertarian" than the public opinion-minded O'Connor, he has been to some degree more willing than her, and perhaps less willing than the Court's liberals, to favor federal over state power, Congress over the President, and local authorities over miffed private citizens. Last year, his respect for federal supremacy led him to dissent in Cuomo v. Clearing House Association, when the Court's four liberals were joined by the solidly conservative (but independent-minded) Justice Scalia in ruling that states may enforce their own regulations against federal financial institutions. But in general, Kennedy's attitudes about federalism have proven more beneficial for liberal (or at least Democratic) causes than O'Connor's, though one could argue that most liberals would have preferred to see the O'Connor-Rehnquist-Thomas position prevail in Raich.
Criminal sentencing is another major constitutional area in which Kennedy's recent importance has been good for liberal jurisprudence. While most assume he supports the death penalty from a macro standpoint, his position, as on abortion, is rather muddled due to the intersection of his personal Catholicism with his worldly legal approach. Kennedy has been quite willing, in fact, to minimize the use of capital punishment in recent years. O'Connor, Kennedy, and the four liberals (at the time, Stevens, Souter, Ginsburg, and Breyer) formed a 6-3 majority against executing the mentally handicapped in Atkins v. Virginia (2002). But three years later, when Kennedy and the liberals ended executions for juvenile killers in Roper v. Simmons, the vote was 5-4; O'Connor dissented from this, the most significant limit to date on death sentencing. O'Connor herself was no hardliner on the death penalty, having supported restrictions in Ford v. Wainwright (1986), which struck down executions for the insane, and Atkins, but this case was a step too far for her even as she was growing more liberal by the year. Many think that Kennedy's skepticism toward capital punishment is relatively new, since his Roper opinion directly overruled the Stanford v. Kentucky precedent of 1989 (in that case, Kennedy had joined Scalia, Rehnquist, and White to uphold the constitutionality of executing murderers who had committed their crimes at age 16 or 17; O'Connor had concurred).
In 2008, Kennedy restricted capital punishment even further in Kennedy v. Louisiana. This 5-4 decision ruled that Louisiana's death penalty statute for rape cases was, like those other applications of capital punishment, cruel and unusual, and that death sentences could not be imposed on non-homicide offenders where death was not intended and did not result (with the obvious exception of crimes against the state, like espionage and treason, which are exceedingly rare). Interestingly, Kennedy would upset the same liberals who had joined him in that case just a few days later with the pro-gun Heller ruling. This year, Kennedy, Roberts, and the liberals struck down life imprisonment without parole for non-homicide juvenile offenders in Graham v. Florida (Roberts, a staunch conservative, concurred in the judgment but disagreed with the other five that this rule should apply in general). If liberals seek to eventually abolish the death penalty as most other developed democracies already have, they will likely continue to rely on Kennedy's chipping-away approach.
Kennedy may be liberal on criminal sentencing, whether the question involves capital punishment or life imprisonment, but he is more conservative on traditional Miranda / rights of the accused cases, giving conservatives the needed fifth vote to narrowly define defendants' procedural rights in Montejo v. Louisiana (last year) and Berghuis v. Thompkins (this year), the recent case that controversially declared that the right to remain silent does not exist unless specifically invoked (that is, a suspect cannot simply keep his mouth shut and assume that the police will end the interrogation). He has, however, enraged the John Yoo/Dick Cheney crowd by joining liberals to grant accused enemy combatants the right to challenge their detentions at Guantánamo Bay in U.S. courts (Boumediene v. Bush, 2008); and not long after O'Connor's departure in 2006, Kennedy joined Souter's majority opinion in the Fourth Amendment case Georgia v. Randolph, which asserted that, without a warrant, the police cannot search a suspect's home if one occupant consents and the other objects.
Kennedy's liberalism on gay rights is the final important way in which his status as swing vote has been less than deleterious to progressive interests. Both Kennedy and O'Connor did side with the Boy Scouts' anti-gay discrimination policy in the controversial Boy Scouts of America v. Dale (2000) case, but struck down government discrimination against gays in Romer v. Evans (1996), which invalidated Colorado's constitutional provision preventing the state from passing any anti-discrimination law in favor of gays, and of course Lawrence v. Texas (2003), striking down all existing sodomy laws as unconstitutional infringements of due process. Presumably Kennedy and O'Connor distinguished public from private discrimination, explaining their votes in Dale; when laws were involved, both took a tolerant stance toward homosexuality and a hard line against government-sanctioned discrimination. O'Connor, however, was a bit more conservative about gay rights than the internationally minded and younger Kennedy, who spends each summer with his foreign counterparts at an annual judicial conference in Austria. O'Connor did not travel as frequently as Kennedy when she was on the Court, nor did she take as much interest in foreign law.
While she later sided with the gay rights movement in Romer and Lawrence, these represented a change in mindset for O'Connor, who had voted with the others in the 5-4 Bowers v. Hardwick (1986) majority upholding Georgia's sodomy statute. Lawrence directly overruled Bowers, which is why O'Connor concurred but did not join Kennedy's sweeping opinion declaring that, in general, laws relating to private, consensual sexual behavior do not survive the rational basis test. O'Connor's concurrence stated that she stood by Bowers as precedent, but that in this case the Texas law violated equal protection. Ironically, had Kennedy chosen equal protection instead of due process to justify the ruling, he would have paved the way for nationwide same-sex marriage, a cause to which he is probably somewhat more sympathetic than O'Connor was.
So is Kennedy better or worse from a liberal standpoint than O'Connor? On affirmative action, abortion, and campaign finance, definitely worse, as O'Connor hewed closely to the public's moderate-to-liberal consensus on these issues while Kennedy takes a more conservative-minded libertarian's view on all three. It is also plausible that O'Connor would have sought narrower, more centrist decisions in recent landmark conservative rulings such as Heller. But on federalism, gay rights, congressional authority (in separation of powers disputes and federal-state clashes), and some key areas of criminal law (notably foreign detainees' habeas rights and criminal sentencing), he has proven more progressive than O'Connor, often when O'Connor has sought to respect or defer to public opinion. Kennedy cares far less for public opinion and will champion the causes of unpopular people, be they alleged terrorists, death row inmates, gays, or Congressmen, if he sees fit; that attitude does result in more conservative thinking, too, when he sides with corporate donors over reformers like Senators McCain and Feingold.
In sum, liberals should hope that Kennedy, now nearing his 74th birthday, does not retire during a Republican Presidency as he would probably like to do; although he has sided with his conservative colleagues about two out of every three times in close decisions, a GOP-appointed replacement would likely be as staunch an ideologue as O'Connor's successor, the doctrinaire conservative Alito, and would represent a serious step back for upholding major federal regulations, limiting application of capital punishment and other severe criminal sentences, ending anti-gay discrimination, and permitting women (and gays) to decide how to use their own bodies. It will be interesting to see how (if at all) Elena Kagan influences Kennedy once she is confirmed to the Court, which presumably will happen before the start of the 2010 term.
