As the court’s longtime swing voter, Justice Sandra Day O’Connor was a bit of a tease. You prayed and nibbled your nails while you waited too see whether she would come down on your side, and when she did, you felt great relief—and then anxiety. She’d given you her fifth vote, but she wasn’t ready to commit. The opinion she’d written or signed teetered and hedged before reluctantly slumping down on your side of the scale. Looking ahead, you weren’t sure what she or the court would do the next time a similar case came along. All you could do was console yourself with eternal hope: At least when you lost her, she didn’t flit far out of reach, and you might win her back.
Justice Anthony Kennedy, on the other hand, is a swinger who knows how to be in a long-term relationship. When you’ve succeeded in wooing him, you know it. You read some of your own strongly felt sentiments taken to stirring heights in his opinions. Kennedy gives you passion. He’s often been portrayed as the impressionable agonizer. But if he goes back and forth on the big ones, you often can’t tell once he’s done writing. He gives the winning suitor the comforting feeling that he’s with you, for real, for the long haul.
That’s one way to compare the two justices. Viewed through this lens, Kennedy can look pretty good to liberals on occasion, even if he looks pretty good to conservatives more often. But there’s another method of comparison that explains why the left still longs for O’Connor. If you track the two justices across different areas of law, counting up the number of fifth votes cast rather than the scope of the decisions they wrote or joined, O’Connor gave the left more. On voting rights, campaign finance, the separation of church and state, and certainly on abortion and sex discrimination, she’s the one. Georgetown law professor and contributor to Slate’s Convictions blog Marty Lederman has been keeping the list. Kennedy goes deeper. But O’Connor went wider.
The contrast was evident last year when Kennedy issued his opinion in the late-term abortion case, Gonzales v. Carhart. He not only allowed the restriction on abortion in question to stand; he “relied on ancient notions about women’s place in the family and under the Constitution” in mourning for women who come to regret their abortions later, as Justice Ruth Bader Ginsburg objected in her dissent.
Kennedy’s overall record on sex discrimination and women’s rights is the opposite of reassuring. In a forthcoming paper, Drexel law professor David S. Cohen charts Kennedy’s votes in 43 such cases in which the court was not unanimous. He finds that Kennedy voted to strike down the sex-discrimination claim (or voted in favor of the abortion restriction) 78 percent of the time. In cases that split 5-4, his conservative record is 97.5 percent. O’Connor voted in 40 of the 43 nonunanimous cases and voted yes to a sex-discrimination claim, Cohen reports, 34 percent of the time when Kennedy voted no. In no case did they switch sides, with Kennedy’s vote recognizing merits of a claim that O’Connor rejected. “If you look at Justice Kennedy’s entire record, he has very traditional notions about gender, particularly the family,” Cohen says.
And yet there are titillating exceptions. Kennedy signed onto Ginsburg’s opinion requiring the Virginia Military Institute to open its doors to women. He joined with O’Connor and Justice David Souter to fashion the compromise solution in Planned Parenthood v. Casey that saved the core of Roe v. Wade. And he wrote the pro-gay-rights opinions in Romer v. Evans and Lawrence v. Texas. Kennedy didn’t just come down in favor of the gay litigants, he spoke sweetly to them. Romer protects them from government policies based on what Kennedy called “animus,” or rank dislike. Lawrence, as William Eskridge and Darren Spedale point out in Slate, included cheering words about the contributions of gay people that have “helped make the country more gay-tolerant.” Kennedy is the justice whom gay and lesbian couples in California should toast as they celebrate their first weddings.
Then there’s Kennedy’s star turn this term in Boumediene v. Bush, the court’s big 5-4 split so far this term and the latest rejection of the Bush administration’s efforts to lock up the Guantanamo detainees and bury the key in Cuba. Kennedy gave us “a sustained scholarly opinion that includes moving statements about the meaning of habeas and of constitutional limitations on power,” as Yale law professor Judith Resnik puts it. In particular, there’s this music to civil-libertarian ears: “The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom.”
It’s not exactly fair to compare Kennedy’s opinion in Boumediene to O’Connor’s in the first Guantanamo challenge, Hamdi v. Rumsfeld, and to find her lacking. She went first, sooner after 9/11. Six years and two other intervening cases later, it’s easier to chide the Bush administration and question its security mantra. Both opinions sketch an outline for a trial procedure for the detainees rather than filling in all the specifics. And O’Connor gave the detainees this line: “a state of war is not a blank check for the president.” But Kennedy goes further in making clear that the right to bring a habeas appeal is a full one that reaches Guantanamo. Now that they have him on their side, the detainees’ arguments have become his arguments.
Still, Kennedy may never swing with the liberals as often as O’Connor did. On the separation of church and state: In 2005, she knocked down a government display of the Ten Commandments. Kennedy would have left it in place. He also may prove more accepting of direct state aid to religious organizations, Marty Lederman points out. On campaign finance: In 2003, she upheld restrictions on donations by corporations and unions; Kennedy in effect reversed her last year. On race: O’Connor voted to uphold the University of Michigan law school’s affirmative action plan in 2003. Kennedy voted to kill it. While he gets points for his concurrence in last year’s school-integration decisions, which saved “race-conscious” student assignment plans, O’Connor might have been more sympathetic to the school districts in the end.
On the other hand, Kennedy has Roper v. Simmons, the case in which he put an end to the juvenile death penalty, over O’Connor’s dissent. Kennedy even invoked the support of foreign courts in favor of his position—red meat that the right has been spitting back at him ever since. This is where Kennedy’s enthusiasm can backfire. Even his defenders admit that he can be florid. O’Connor was never as easy to caricature. And she did let the left take her out on the dance floor more often, even if she never got down and boogied. There have been fewer 5-4 splits this term, but never fear; on some of the big ones, they’ll be back. So who’s the swing justice to swoon for: The one who gives more prim kisses, or the one who plays harder to get?