Seeking a successor to Justice Kennedy’s complex legacy

This being an election year, Justice Anthony Kennedy’s retirement came as a surprise. Was the timing simply observance of the unstated rule that a justice tries to resign when his political party is incumbent, or did it represent — like the reputation of Justice Kennedy himself — that the electoral question could go either way?

The Supreme Court’s 2017-2018 term involved everything from whether a baker with religious objection could be required to cater same-sex weddings, to the legitimacy of presidential limits on migratory and refugee travel, to the collectability of so-called agency fees from nonmembers of public-employee unions. As disparate as these may seem, each case asked the court to resolve the tension between individual liberty and governmental power. Justice Kennedy was in the majority in each.

{mosads}As Kennedy wrote at the time of his confirmation, “one can conclude that certain essential, or fundamental, rights should exist in any just society. It does not follow that each of those essential rights is one that we as judges can enforce under the written Constitution. The Due Process Clause is not a guarantee of every right that should inhere in an ideal system.”

When the courtly southern gentleman, Lewis Powell, resigned from the court in 1987, President Ronald Reagan did not immediately turn to Kennedy to fill the vacancy. Reagan’s first choice was Robert Bork, with whom Kennedy shared much by way of conservative ideology but with a crucial difference. Bork, by nature, exuded an almost categorical — some would say arrogant — rejection of any judicial role in the articulation and defense of un-enumerated or implied rights. Kennedy left open the possibility of judicial intervention, suggesting a zone of liberty, a zone of protection, where the individual can tell the government “beyond this line you may not go.”

This may seem a subtle difference, but it was over that boundary that Bork was rejected and Kennedy confirmed, 97 to 0.

Over his tenure, Kennedy favored the conservative outcome well over 90 percent of the time. On the Rehnquist Court in the 1980s and ’90s, he often shared the midpoint with Justice Sandra Day O’Connor. The hot topics of those days implicated issues of race, religion and abortion. Kennedy would be more reluctant than O’Connor to extend the use of race beyond provable past discrimination, was more accommodating than O’Connor to public interaction with faith-based organizations, and with O’Connor (and Justice David Souter) reconstructed, but did not overrule, the abortion right found in Roe v. Wade.

O’Connor tended toward the pragmatic or fact-specific while Kennedy repeatedly stressed an overarching limit on governmental power: Yes, the defense of human rights can be left to the political process but not where that process is a manifestation of hostility.

Thus, Kennedy’s recent concurrence upholding President Trump’s travel ban reasoned that “governmental action may be subject to judicial review to determine whether or not it is ‘inexplicable by anything but animus.’” State legislation that denied civil rights protection on the basis of sexual orientation had no rational basis, said Kennedy, and it would be a short distance from that to his conclusion that the Constitution precludes limiting marriage to a man and a woman.

The Supreme Court with a Kennedy successor will now need to more clearly identify the due process and equal protection nature of his rulings.

In matters of race, Justice Kennedy was not prepared to embrace Chief Justice Roberts’ notion that, to get beyond the troubling use of race, one must stop using it in decision-making. Instead, while rejecting the generalized reliance upon race to bring diversity to the law school at Michigan, Kennedy for a court majority allowed the University of Texas to seemingly satisfy constitutional concerns by promising, vaguely, not to rely upon race indefinitely and consciously monitoring admission practices to ensure that race remained a modest, individualized consideration.

Reagan and Bush supporters indulged the idea that an appointment or two on the Supreme Court would lead to the overruling of Roe; Justice Kennedy would disappoint on that prospect. Waxing philosophic, he posited that moral reality was subject to self-definition and, thus, abortion was different than the taking of other human life. Nevertheless, he moderated the impact of Roe by joining with Justices O’Connor and Souter to put abortion off-limits unless such limitations created an “undue burden.” He persuaded his colleagues to sustain limitations on a particularly gruesome form of abortion and, in his final week, concurred in the invalidation of a California statute mandating that entities not offering abortion be coerced to inform patients of the availability of abortion elsewhere.

Who might succeed him? By constitutional design, impartial judges are chosen from among political partisans. Given today’s stark political divisions, he almost certainly understood that his retirement would subject the Supreme Court to what passes for discourse in a midterm election.

At a minimum, Democratic partisans are likely to closely scrutinize the Federalist Society list on which President Trump found Neil Gorsuch; are the remaining listed candidates in the moderate, Kennedy mold? Moreover, it will not be lost on Democrats that whoever is appointed by President Trump may well rule on the president himself, given the special counsel investigation.

Names already are circulating. Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit, Judge Diane Sykes of the Seventh Circuit, and former judge and constitutional religion-clause expert Michael McConnell received shortlist attention in the past and are likely to again. Amy Coney Barrett, new to the Seventh Circuit, presents a Souter-like opportunity to appoint someone with a short paper trail; Margaret Ryan of the armed services’ Court of Appeals provides the historic opportunity to nominate the first female Marine.

The discussion will be intense, as it should be. As Justice Kennedy wrote in one of his last concurrences, “history … shows how relentless authoritarian regimes are in their attempts to stifle free speech … Freedom of speech secures freedom of thought and belief.”

And lest the point be obscure, Justice Kennedy expressly conditioned his acceptance of the facial validity of the travel ban with these words: “It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs. An anxious world must know that our government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”

Douglas Kmiec served as the U.S. ambassador to Malta from 2009 to 2011 and is the Caruso Family Chair in Human Rights and professor of constitutional law at Pepperdine University School of Law.