- Chip Somodevilla/Getty Images
- Despite being a conservative and nominated to the Supreme Court by a Republican president, retiring Justice Anthony Kennedy has been the swing vote on the Supreme Court and sided numerous times with the liberal justices.
- Kennedy has sided with his liberal colleagues on the court on issues such as gay rights, abortion, capital punishment, and affirmative action.
Despite being a conservative and nominated to the Supreme Court by a Republican president, retiring Justice Anthony Kennedy has been the swing vote on the Supreme Court and sided numerous times with the liberal justices.
Kennedy has sided with his liberal colleagues on the court on issues such as gay rights, abortion, the death penalty, and affirmative action.
He wrote the majority opinion for the Supreme Court’s landmark ruling in Obergefell v. Hodges, which legalized same-sex marriage across the country in 2015.
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family,” he wrote in the majority opinion. “In forming a marital union, two people become something greater than once they were.”
Kennedy sided with the liberal justices again in 2016 in Whole Woman’s Health v. Hellerstedt, striking down a Texas law limiting women’s access to abortions. In a 5-3 decision, the Supreme Court ruled that the Texas law brought about an undue burden.
Before that, Kennedy wrote the controlling opinion in 1992 in Planned Parenthood v. Casey to reaffirm the right to have an abortion and that laws prohibiting abortions are unconstitutional. In a 5-4 ruling, the court said that a provision of a Pennsylvania abortion law qualified as an undue burden.
With the departure of Kennedy from the court, many fear that abortion rights could be on the ropes depending upon who President Donald Trump nominates.
Kennedy joined the liberal justices in the majority in 2008 in Kennedy v. Louisiana, ruling in a 5-4 decision that capital punishment was unconstitutional for crimes other than murder.
Writing in the majority, Kennedy said there was “a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons.”
Six years later in 2014, Kennedy sided with the liberal justices once again on the issue of death penalty in the case Hall v. Florida. In a 5-4 decision, the court ruled that Florida’s law of deciding which mentally ill people could be withheld from capital punishment was too strict.
“The death penalty is the gravest sentence our society may impose,” Kennedy wrote in the majority. “Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution. Florida’s law contravenes our nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world.”
Whole Woman’s Health v. Hellerstedt was not the only case in 2016 in which Kennedy joined his liberal colleagues in the majority. In a 4-3 decision, the Supreme Court ruled in Fisher v. University of Texas to uphold affirmative action in college admissions and deny a challenge to an admissions program at the University of Texas.
It was the first time that Kennedy voted to uphold an affirmative action program, as the court sided with the university’s admissions program to consider race as a factor as lawful under the Equal Protection Clause of the 14th Amendment.
“Privileging one characteristic above all others does not lead to a diverse student body,” Kennedy wrote in the majority opinion. “Indeed, to compel universities to admit students based on class rank alone is in deep tension with the goal of educational diversity as this Court’s cases have defined it.”