The Supreme Court will hear arguments in this term’s blockbuster case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, on Tuesday. Most commentators agree that the decision over whether or not a cake shop has a constitutional right to discriminate against gay couples will likely come down to Justice Anthony Kennedy, the author of all of the court’s recent decisions upholding gay rights.
For his many defections from the conservative agenda on these cases and others over the years, Kennedy has consistently incurred the wrath of right-wing legal scholars. After the court’s decision to uphold affirmative action two terms ago, for example, one typical conservative pundit called Kennedy’s opinion “an embarrassing mess.”* While this running theme may get new life depending on how Masterpiece Cakeshop goes, nobody should have been surprised by Kennedy’s broad constitutional interpretive leanings from day one on the court. He literally spelled all of these views out in his 1988 confirmation hearings, which were the most open of any of the court’s current justices.
That, of course, hasn’t stopped conservatives from misunderstanding the motivations behind Kennedy’s views again and again. After Kennedy’s vote to reaffirm Roe v. Wade in the 1992 case Planned Parenthood v. Casey, Terry Eastland of the American Spectator suggested that Kennedy’s change of heart was due to his wanting to please New York Times reporter Linda Greenhouse. Eastland also cited Judge Robert Bork’s claim that Kennedy showed “a willingness to ignore the actual principles of the Constitution in order to enact a liberal cultural agenda that rests on extreme notions of individual autonomy.”
These criticisms of Justice Kennedy, of course, pale compared to the wrath he incurred after his pair of decisions in 2013 and 2015 overturning federal and state bans on same-sex marriage. Ed Whelan of the National Review, and a former clerk of Antonin Scalia, called Kennedy’s opinion in Obergefell v. Hodges “a bag of gas.” Mathew Franck probably spoke for many conservatives when he wrote the following about Kennedy’s decision in Obergefell that gay marriage bans violated the 14th Amendment’s due process and equal protection clauses:
Make no mistake, the harms from the Court’s appallingly illegitimate decision are many, and gravely serious. But the good news for a cockeyed optimist like me is that Justice Anthony Kennedy’s opinion is so incompetent, so gossamer-thin as an exercise in legal or constitutional reasoning, so unpersuasive even in political terms, that it renews my zest for carrying on the battle of persuading my fellow citizens and turning the country around on this issue.
It’s obvious that conservatives feel betrayed by this Reagan appointee. But during his confirmation hearing, Kennedy did not hide the ball about his decidedly non-originalist, aggressive, judge-centered theory of constitutional interpretation. In fact, he may have been the last judicial nominee to honestly tell the world what kind of Supreme Court justice he was going to be. Since that time, most justices have refused to say anything about specific legal issues beyond genuflections towards vague jurisprudential concepts.
Kennedy’s confirmation hearing came just three months after the Senate refused to confirm Judge Bork, who had testified that he would not strike down state or federal laws absent an obvious inconsistency with clear constitutional text. Bork thought landmark Warren and Burger Court cases like Griswold v. Connecticut, Miranda v. Arizona, and Roe v. Wade were wrongly decided; that there was no constitutional right to privacy; and that the Fourteenth Amendment should not be interpreted by judges to provide substantial protection for women. During his hearing, Kennedy rejected all of these positions.
At the time, many conservative politicians, judges, and law professors—including Bork, then–Attorney General Ed Meese, and Scalia—had expressed great reservations about broad readings of the due process clause of the 14th Amendment. At the beginning of his testimony, though, Kennedy made his now famous libertarian leanings crystal clear:
[The idea of liberty] is central to our American tradition. It’s central to the idea of the rule of law. And that is that there is a zone of liberty, a zone of protection, a line that’s drawn where the individual can tell the government: Beyond this line you may not go.
When asked how he would draw that difficult line, Justice Kennedy said that the “object of our inquiry is to use history, and to use the case law, and to use our understanding of the American constitutional tradition … to determine the intention of the document broadly expressed.” Kennedy elaborated on this view of interpreting a Constitution “broadly expressed” as it pertained to the due process clause:
I think that the concept of liberty in the due process clause is quite expansive, quite sufficient, to protect the values of privacy that Americans legitimately think are part of their constitutional heritage. … It is very clear that privacy is a most helpful noun, in that it seems to sum up rather quickly values that we hold very deeply.
In further response to questions from both sides of the aisle about the proper role for judges in constitutional cases, Kennedy continued to foreshadow his activist style of judicial review. Even where fundamental rights are not specifically addressed in the constitutional text, “the Constitution is not weak because we do not know the answer to a difficult problem,” he told the committee. “It is strong because we can find that answer.”
Kennedy also talked at length about the relationship between personal freedom and the courts:
Each man and woman has the freedom and the capacity to develop to his or her own potential. That is somewhat different than the Constitution states it, but I think all Americans believe that. And I think that has a strong and a very significant pull … on the courts.
Kennedy’s potential for conservative heterodoxy could also be seen in his previous judicial work. As a 9th Circuit judge. he had heard a case involving a Navy sailor who was dismissed for being gay. Under Supreme Court precedent at the time, Kennedy probably had to rule against the plaintiff. However, he seemed to do so grudgingly. At his confirmation hearing, Kennedy said that “I spent a great deal of time on [that case], and I thought it important for the reader, and for the litigants to know that I had considered their point of view.” This sensitivity to the plight of gays and lesbians was unusual for a federal judge at the time.
In response to a question from a senator about how Kennedy would define the right to privacy, and what activities would be covered by that right, he said the following:
A very abbreviated list of the considerations are the essentials of the right to human dignity, the injury to the person, the harm to the person, the anguish to the person, the inability of the person to manifest his or her own personality, the inability of a person to obtain his or her own self-fulfillment, the inability of a person to reach his or her own potential.
These broad, freedom-loving comments by Justice Kennedy preordained many of the passages in his gay rights opinions. In Obergefell, he wrote that gays and lesbians were asking “for equal dignity in the eyes of the law” and that “[t]he Constitution grants them that right.” In Lawrence v. Texas, the ruling that struck down laws criminalizing consensual same-sex sodomy, Justice Kennedy wrote one of his most famous paragraphs:
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
Unsurprisingly, this was also one of the passages by Kennedy most harshly criticized on the right. Based on his confirmation hearings, though, it also should have been considered one of his most predictable rulings.
Anthony Kennedy is exactly who he told us he was. Conservatives may still be appalled by what that means for constitutional law, but they should have never been surprised.
*Correction, Nov. 29, 2017: This post originally misstated that the second Fisher v. University of Texas decision occurred in the 2016–17 term. It occurred in the 2015–16 term. (Return.)