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A Brief History Of Anthony Kennedy's Swing Vote — And The Landmark Cases It Swayed

Justice Anthony Kennedy, seen here during congressional testimony in 2015, has played a pivotal role on the Supreme Court since he was sworn in 30 years ago.
Pete Marovich Bloomberg via Getty Images
Justice Anthony Kennedy, seen here during congressional testimony in 2015, has played a pivotal role on the Supreme Court since he was sworn in 30 years ago.
A Brief History Of Anthony Kennedy's Swing Vote — And The Landmark Cases It Swayed
Justice Anthony Kennedy's Swing Vote GUEST: Dan Eaton, partner, Seltzer, Caplan, McMahon, Vitek

Our top story on Midday Edition, with the retirement of Supreme Court Justice Anthony Kennedy, a lot of the suspense may have gone out of future Supreme Court decisions. It was Kennedy as the swing vote who was the most on predictable justice and the high coat -- court from gay marriage, to abortion-rights. It was never clear which way Justice Anthony Kennedy would vote . In recent years his vote made the difference in deciding major Supreme Court decisions. President Donald Trump has said he hopes to install a much more reliable conservative on the bench. He has a list of potential nominees. Joining me to discuss the career of Justice Anthony Kennedy and what comes next is attorney John -- Dan Eaton legal analyst. Welcome back, Dan. Were you surprised by the sudden announcement of Justice Anthony Kennedy's retirement ? >> I was in a sense. Obviously he is up in AGE. I am surprised about the timing of it because it is in the teeth of a midterm election. One of the good things about Justice Anthony Kennedy off the bench as he was involved in civics education. He could not have been oblivious to the fact that this now becomes an election issue. That said Mitch McConnell suggested that this will be over in September. That his replacement will be installed by September. >>> How would you from your vantage point describe Justice Anthony Kennedy. What kind of a jurist was he? Being in the word the const -- comes to mind is consequential. The first sense is that obviously his vote mattered. When you look at his vote, he offered about 300 majority opinions of which one third were 5-4 decisions. Meaning he was the swing vote. He often said that he hated the character's -- characterization of him being a swing vote. The second sentence in which he was a consequential justice is that it was clear from his writing that he looked at the consequences of his decision on the parties and the broader system the consequences of his decisions. In both respects the fact that he was consequential and he made a key difference in both -- so many cases and the fact that he focused on the real not -- real-life consequences of his decision, Justice Anthony Kennedy the son of Sacramento will go down as one of the most consequential justices in the history of the United States Supreme Court. >>> Let's talk more about the swing vote. Is being the swing vote. Was and he originally thought of as a conservative? >> He was. He was actually nominated in 19 -- 1987 to replace the last swing vote Justice Lewis Powell. The first person who was nominated to that seat was Robert Bork. The second person was Douglas Ginsburg who smoked pot with his law school students and Nancy Graves -- Nancy Reagan said no. And then you have Judge Kennedy in the Ninth Circuit who was thought to be reliable conservative is vote during the rough decade indicated overtime. His vote came less reliable as you said. >>> What changed? Did the court change? Anthony Kennedy said cases changed to quote. >> There is a famous situation where the memos have come out public about the Planned Parenthood versus Casey where he wrote Justice Souter and O'Connor where he was to write a majority opinion that would have overturned Roe V Wade. He sent a note to a liberal justice is that this opinion will not right. That led to the triumph with Justices Souter, O'Connor, Suddenly writing the opinion that reaffirmed the right to abortion. The issue, his thought process has changed. He developed a deeper understanding from his perspective. His focus was always on the consequences not just for the sake of consequences but how they apply to the law and the constitutional provisions. >>> Let's talk about a couple of other issues on which Justice Anthony Kennedy seemed to side with more liberal side of the court. That is on same-sex marriage and a no death penalty for people convicted for capital offenses under 18. >> The cases regarding gay rights are the close decisions on which he will go down as best-known. Those of the ones he is best-known. With respect to the death penalty, he supported the death penalty but with limits. He said yes at some point it is appropriate. There are some points in which it becomes cruel and unusual punishment under the eighth amendment and you cannot have it. That is part of what I am talking about as far as looking at nuances of the constitutional revisions that they apply to not with the overall doctrinal view but real-world consequences. >>> Real-world consequences could not be any stronger than Bush beating Gore and also citizens United were people say he sided with the more conservative side of the coin. >> Exactly. I think Justice Anthony Kennedy will be known for the 5-4 decision where he decided with the liberal justice but when you talk about citizens United which unleashed political donations or spending our unions and corporations in a way that was not allowed before. When you look at Bush versus Gore which he did not offer citizens United but Bush versus Gore tossed election to George W. Bush. That will be important. Some cases where he provided the fifth vote and did not write it like the Second Amendment case the individual right to keep and bear arms show how consequential this judgment was. Without him there, you can imagine a different result. Now that he is leaving, the court will shift to the right where Roberts will become the swing vote and Roberts is a definite conservative. >>> President Donald Trump says he will get to work to nominate someone right away. Senate Minority Leader Chuck Schumer had something to say about that followed by Senate Majority Leader Mitch McConnell. >> Our Republican colleagues in the Senate should follow the rules they set in 2016. Do not consider a Supreme Court justice in an election year. Anything about that. It would be the absolute height of hypocrisy. >> The Senate stands ready to fulfill its constitutional role by offering advice on President Donald Trump's nominee to fill this vacancy. We will vote to confirm Justice Anthony Kennedy's successor this fall. >>> President Donald Trump apparently has a list of potential nominees already set to go. Can you tell us about who tops the list? >> It is a list from back of the campaign on the White House website updated as of 2017. The top of the list is thought to include Thomas Hardiman a judge in the Third Circuit. The same circuit where Trump brought the -- President Donald Trump sisters Mary and barriers sits she recommends into the Supreme Court. The other two judges who get a lot of attention are Brett Cavanaugh out of DC and William Pryor out of the 11th circuit in Alabama who are both strong and their writings are strong Lee conservative. Cavanaugh is part of kin stars independent -- independent Prosecuting team. >>> I have been speaking with Dan Eaton. Thank you. >> Thank you, Maureen.

Updated at 7:50 p.m. ET

Justice Anthony Kennedy announced Wednesday he would be retiring from the Supreme Court. With him go his three decades of experience on the bench and, more politically pressing, his moderate legal philosophy.

It was this centrist streak that made his vote the key in many deeply divisive cases — so many, in fact, that Kennedy earned himself a reputation as the court's quintessential "swing vote."

Kennedy himself was no fan of the term. "The cases swing," he once said. "I don't." But when the high court's conservative and liberal blocs appeared at a stalemate — a fairly frequent occurrence in recent years — it would be no surprise to find his name in the slim majority when the ruling was released.

On the occasion of his retirement, it's worth a look back on some landmark 5-4 rulings that were likely decided by a single vote — his.

One need not look far.

Janus v. AFSCME (2018)

On Wednesday, the day of Kennedy's retirement, the Supreme Court ruled 5-4 for a child-support specialist who challenged an Illinois law requiring government workers to pay partial union dues, even if they're not members, to cover the cost of negotiations on their behalf.

Mark Janus argued he should not be responsible for any collective bargaining fees if he has opted out of the union — and the high court's majority, including Kennedy and the conservative justices, agreed.

The ruling dealt a significant defeat to public employee unions, which have had a pillar of their financial support knocked out from under them.

Perhaps nowhere is it expected to have a greater impact than among teachers unions, which, as NPR's Cory Turner and Anya Kamenetz report, stand to lose members, money and influence in debates over education reform, among other things.

Read the full opinion

Trump v. Hawaii (2018)

Just one day earlier Kennedy joined the court's conservative justices in a decision on the Trump administration's travel ban, which bars visitors from eight countries, six of which have Muslim majorities.

The ban had undergone several revisions since its chaotic introduction just days into Trump's presidency, but each one had been rejected by lower courts as either illegal or unconstitutional.

The high court disagreed with those rulings, finding that the proclamation falls "squarely within the scope of Presidential authority."

President Trump celebrated the ruling as a "profound vindication" of his immigration policies, which have drawn significant backlash for years, dating back to the first moments of his presidential campaign.

It is also likely to have an outsize impact on the office of the presidency itself, having affirmed the chief executive's broad powers to dictate immigration policy as a response to changing conditions abroad.

Read the full opinion and dissents

Obergefell v. Hodges (2015)

In the case that effectively legalized same-sex marriage nationwide, Kennedy cast his pivotal swing vote with the liberal bloc and wrote the majority opinion.

"It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves," he wrote.

"Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right."

Reporting at the time, NPR's Nina Totenberg was not shy in assessing the case's importance.

"This is probably right up there with Brown v. Board of Education and Roe v. Wade — if you like it or hate it — and today, Obergefell v. Hodges," she said. "This was a historic moment."

Read the full opinion

Shelby County v. Holder (2013)

The Voting Rights Act of 1965 went under the microscope in Shelby County, which saw the Alabama county challenging a key provision of the law. The portion in question required certain areas with records of racial discrimination — Alabama among them — to get approval from the federal government before making any changes to their elections procedures.

But Kennedy sided with the court's conservatives, finding that the provision leveled unfair and outdated burdens on the affected states.

"Our country has changed," Chief Justice John Roberts wrote in the majority, "and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions."

The ruling struck down the key section and stripped the Justice Department of some tools to monitor elections. And several states have since moved to implement stricter voting laws, including requiring voters to show ID and redistricting maps without federal approval first.

Both developments have fueled new controversy in the courts.

Read the full opinion

United States v. Windsor (2013)

Two years before Obergefell, Kennedy joined liberal justices in Windsor and wrote the majority opinion to strike down the 1996 Defense of Marriage Act.

The law defined marriage as "a legal union between one man and one woman as husband and wife" and in so doing barred same-sex spouses from receiving federal recognition in matters of tax filing and insurance benefits, among other things.

According to Kennedy's opinion, issued in June 2013, it also denied same-sex couples their Fifth Amendment right to "equal liberty."

Read the full opinion

Citizens United v. Federal Election Commission (2010)

Kennedy joined conservatives in the majority to hold that corporate donations to political campaigns are protected by the First Amendment.

"If the First Amendment has any force," Kennedy said in the opinion he wrote for the majority, "it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."

The decision radically changed decades of campaign finance law by striking down limits on corporate and union political spending. And it changed the face of politics itself.

Read the full opinion

District of Columbia v. Heller (2008)

In this landmark Supreme Court case addressing the Second Amendment, decided precisely a decade ago Tuesday, Kennedy joined the conservatives.

The court sided with Dick Anthony Heller, a special police officer who challenged a D.C. regulation that kept him from having a handgun at home.

Defying a precedent set nearly seven decades earlier, the justices in the majority defined the amendment as saying individuals — and not just groups — enjoy the right to bear arms.

But there were limitations on that right, the court noted. Kennedy was the deciding vote, "and it has long been assumed that the caveats in the decision were the price of his vote," Totenberg wrote earlier this year.

Read the full opinion

Roper v. Simmons (2005)

This 5-4 ruling found that executing juvenile offenders constitutes "cruel and unusual punishment" and thus violates the Eighth Amendment.

"When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties," Kennedy wrote in the majority opinion, "but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity."

In an unusual move, the majority opinion was written by not one but three justices, including Kennedy. And it featured no clear ideological split, with the liberal-leaning Sandra Day O'Connor joining her conservative colleagues in dissent.

Read the full opinion

Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)

The ruling in Casey upheld Roe v. Wade.

In so doing, the majority opinion — written by not one but three justices, including Kennedy — introduced the "undue burden" test, which asserted that a state cannot make laws that impose a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability."

The test has become a key factor in cases addressing abortion in the years since — including in Whole Woman's Health v. Hellerstedt, another closely argued decision released nearly a decade and a half later.

In that 5-3 decision — delivered by a shorthanded court just months after Justice Antonin Scalia's death in 2016 — justices in the majority relied on the undue burden test to strike down a Texas law limiting abortion availability.

Read the full opinion

NPR's Annie Hollister contributed to this report.

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