Kennedy’s Surprising Support for Equality


The New York Times has an article about Justice Anthony Kennedy and how surprising it has been that he has turned into the most prominent and important crusader for LGBT equality in the nation’s history. As the Times notes, there was no reason to expect this when he was appointed to the court in 1987.

The praise now being showered on Justice Kennedy by gay rights advocates — and the deep disappointment of conservatives — would have been hard to imagine when President Ronald Reagan nominated him to the Supreme Court in 1987. Gay rights groups were more than a little wary then.

On the federal appeals court in California, where Justice Kennedy had served for 13 years, he heard five cases concerning gay rights. He voted against the gay rights claim every time.

“I have to say that Kennedy seems rather obtuse on important gay issues and must be counted as a likely vote against us on most matters likely to come before the Supreme Court,” Arthur S. Leonard, an authority on gay rights at New York Law School, wrote in The New York Native, a newspaper that focused on gay issues…

In 1987, gay rights advocates could see little of this coming. Jeffrey Levi, then the executive director of the National Gay and Lesbian Task Force, testified against Justice Kennedy at his confirmation hearings, saying that “his past opinions offer little hope to gays and lesbians challenging adverse treatment in the courts.”

Professor Levi, who now teaches health policy at George Washington University, said in an e-mail that “there was no way to predict that Justice Kennedy would ‘evolve’ as he did (given prior opinions on gays in the military, immigration and federal employment).”

So what happened? Well, part of it might just be chalked up to the general unpredictability of Supreme Court justices. This is hardly the first time we’ve seen someone change their views once they reach the high court. As a lower court judge, they are bound by precedent even if they don’t agree with it. And Supreme Court justices are insulated from the influence of public opinion and political parties more than any other part of the government, by crucial design. John Paul Stevens, Harry Blackmun, Sandra Day O’Connor and David Souter were all appointed by Republicans and became mostly reliable liberal votes on the court.

But none of that explains Kennedy’s legacy on this particular issue. We may not get any understanding of that until after he dies and his papers are made available to scholars.

Comments

  1. eric says

    The guy’s position changed over 26 years. Its perfectly normal. *NO* change over that time period is probably more unusual.

    Though its interesting to think about how the current justices might evolve given the next 26 years. In 2039, Breyer, Ginsburg, Kennedy, and Scalia will all likely be dead or retired, which leaves Alito, Kagan, Roberts, Sotomayor, and Thomas.

    Will any of them get more liberal? More conservative? I could see both Roberts and Alito adopting the Orwellian “we have always recognized gay rights” position in 2039. I imagine Thomas will follow Scalia’s path and become the court’s ultraconservative naysayer.

  2. Matrim says

    @eric> Wait, you think Thomas is still going to be alive and on the court when he’s 91? I don’t think that’s likely.

  3. says

    In many ways, Kennedy’s evolution on gay rights issues mirrors that of American society over the past 26 years.

    Matrim @5:

    If it’s a choice between staying on the bench or letting a democrat pick his successor, I think Thomas will stay on the court, even if it’s as a brain in a jar.

  4. says

    @ Matrim,
    Maybe they can embalm Thomas and wheel him into court like philosopher Jeremy Bentham, who as a condition for leaving his considerable to University College is seated at board meetings even though he died in 1832.
    It’s not like anyone would notice Thomas never asking any questions. And it would be quite easy to predict how Thomas would vote on any given case.*

    * On the side of business and Christians always, and always against anything that involving equal rights for women, gays and lesbians, and darker-skinned people.

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