Well, thanks for what? Today is the twentieth anniversary of Justice Kennedy taking his seat on the Supreme Court. There are certainly things to thank him for. His switch in Casey saved Roe from being overturned. He authored groundbreaking rulings in gay rights, saying the Equal Protection Clause does not tolerate animus towards gay men and lesbians and that liberty under the Due Process Clause includes the right to choose your sexual partner and activities.
But each of those came with a cost or, at the least, a lost opportunity: Roe’s “essential holding” was preserved, but the rest of it was gutted; momentum for protecting sexual orientation under the Equal Protection Clause with greater scrutiny was lost when he applied rational basis review; and, while Bowers was overruled in Lawrence, the doctrinal lack of clarity of the opinion has limited its usefulness in the lower courts.
I’m currently working on a symposium piece for the South Carolina Law Review looking at Justice Kennedy’s legacy for sex and gender jurisprudence. Aside from some of the high profile cases, it’s not good; not good at all. Here’s an excerpt from a look at the numbers in his sex discrimination cases:
Looking at Justice Kennedy’s position in all of these compiled cases shows a Justice who is generally hostile to claims of sex discrimination. Overall, he voted against the sex discrimination claim 65% of the time (42.5 out of the 65 cases with classifiable outcomes (excluding Ayotte)). Removing the 22 unanimous cases from the analysis shows an even starker hostility to sex discrimination claims. In the non-unanimous cases, Justice Kennedy voted against the sex discrimination claim 78% of the time (33.5 out of 43 cases). Focusing the microscope even closer and looking at the narrowly divided cases in which one Justice’s switch would have made a difference (those with 5-4 or 5-3 outcomes) shows that Justice Kennedy almost never sides with the sex discrimination in close cases. In such cases, he voted against the sex discrimination claim 97.5% of the time (19.5 out of 20 cases). His one half-vote in favor of a sex discrimination claim in a closely divided case was his vote to preserve the”essential holding”of Roe v. Wade in Casey; but even that came with his vote to uphold all of Pennsylvania’s abortion restrictions save one.
The problem, of course, is that Kennedy is now the “median” Justice, taking over for Justice O’Connor. She was a much more reliable vote in favor of claims of sex discrimination. With Kennedy’s new position, the future of sex discrimination jurisprudence on the Court is bleak. Just how bleak is evident from looking at the sex discrimination cases on which the two Justices sat together:
Of the 66 cases studied here, Justice O’Connor and Justice Kennedy sat together for 58 of them. Eighteen of those were unanimous decisions, so that leaves 40 cases in which there was at least some disagreement among the Justices. Their votes in those 40 cases can be broken down as follows:
- Justice O’Connor and Justice Kennedy agreed on the position against the sex discrimination claim 17 times (43%).
- Justice O’Connor and Justice Kennedy agreed on the position in favor of the sex discrimination claim 9.5 times (24%).
- Justice O’Connor voted in favor of the sex discrimination claim 13.5 times when Justice Kennedy voted against it (34%).
- In not one case did Justice Kennedy vote for the sex discrimination claim but Justice O’Connor did not.
Stated differently, in their overlapping non-unanimous cases, Justice O’Connor voted for the sex discrimination claim 58% of the time (23 out of 40 cases) whereas Justice Kennedy voted for the sex discrimination claim only 24% of the time (9.5 out of 40 cases).
I’m still in the process of finishing up the article, but I couldn’t resist posting these numbers on this twentieth anniversary for Kennedy. Progressives have no choice but to hope for Kennedy in the future, but the past gives no reason to believe that hope is going to be anything but empty.
- David S. Cohen