The New Supreme Court Term: Justice Kennedy's Pivotal Role in Abortion and Race Cases

By EDWARD LAZARUS
Thursday, Sep. 28, 2006

As the Supreme Court opens its new Term this October, it doesn't take a genius to recognize that the three most important factors to watch are Justice Anthony Kennedy, Justice Kennedy, and Justice Kennedy.

Last term, the first under Chief Justice John Roberts, the Justices started out issuing an unusual number of unanimous opinions, while ducking some of the more controversial issues presented to them. But by the end of the Term, the Court was pretty much back to business as usual - which, for the modern Court, has meant two sharply-opposed ideological factions pivoting around one or two justices at the Court's political center.

In this column, I'll consider what effect Justice Kennedy's important swing votes may have this Term.

Justice Kennedy: A Swing Vote for Twenty Years, and Especially Now

In the early 1980s, Justice Lewis Powell held down the Court's center spot - as the crucial fifth vote on a Court that routinely split 5-4 over hot button issues like abortion, the death penalty, and affirmative action. In 1986, when Powell retired, this pivotal role shifted to Justices Sandra Day O'Connor and Kennedy (Powell's replacement). With O'Connor's retirement last year, Kennedy now stands alone at the center.

The numbers tell the story. Of the 17 cases last term that were decided by either a 5-4 or a 5-3 margin (Justice Samuel Alito, who replaced O'Connor, did not participate in some cases), Kennedy was in the majority 12 times, more than any other justice.

And beyond the numbers, Kennedy proved to be the swing vote between the Court's liberal and conservative camps in almost all the most important cases, including last term's blockbuster decision (Hamdan v. Rumsfeld) declaring unconstitutional the Bush Administration's system for trying accused terrorists before military tribunals.

Kennedy's Central Role This Term: Important Votes on Race and Abortion Cases

This Term, Kennedy's central role is likely to be even more obvious and important. The reason is simple: The Court's docket already includes cases that will require the Justices to revisit this generation's two most emotionally-charged and controversial areas of law: race and abortion. Unless Chief Justice Roberts or Justice Alito shock the prognosticators, Kennedy will cast the pivotal vote in these cases and, thus, in these very important areas determine whether and to what extent the Roberts Court is going to be more conservative than the Rehnquist Court was.

Justice Kennedy has wrestled with the issues of race and abortion ever since his very first full term on the Court, 19 years ago. Yet despite this long experience, his vote is not a foregone conclusion in any of the pending cases.

Take the upcoming abortion case in which the Justices will be considering the constitutionality of the federal ban on so-called partial birth abortions. Six years ago, in the case of Stenberg v. Carhart, the Court, by a 5-4 vote, struck down a very similar ban enacted by the state of Nebraska. Justice Kennedy wrote an angry dissent in Stenberg and many Court observers expect him to use the upcoming challenge to the federal statute to overturn Stenberg and vindicate his previous deeply-held views.

But the situation may be more complicated that it looks at first blush. In the area of abortion rights, Justice Kennedy has spent the last 19 years trying to figure out the right balance between (on the one side) his moral aversion to abortion and his jurisprudential skepticism toward Roe v. Wade, and (on the other side) his commitment to the principle of stare decision, and his deep concern that the Court not seem to be revising the meaning of the Constitution in response to public opinion or political challenges to the Roe decision.

The Evolution of Kennedy's Views on Roe, and Abortion Cases Generally

When Kennedy first joined the Court, he was prepared to overturn Roe and voted to do so in the 1989 case Webster v. Reproductive Health Services. At the time, Justice O'Connor was the swing vote on abortion cases and she prevented that result.

By 1992, however, Kennedy had rethought his views. In the landmark case Planned Parenthood v. Casey, Kennedy joined with Justices O'Connor and David Souter in a controlling plurality opinion that upheld the core principles of Roe while, at the same time, permitting states somewhat greater latitude in regulating abortion. Although Kennedy still thought that Roe was incorrectly decided, he had come to feel even more strongly that overturning Roe "under fire" from anti-Roe groups would importantly damage the Supreme Court's institutional integrity.

In the wake of Casey, the Court did not decide another abortion case until Stenberg in 2000. There, Kennedy split with the other members of the centrist trio in Casey, both of whom thought that the criminal ban on partial birth abortion - which did not contain a clear exception for the health of the mother - violated the core principles of Roe, and was thus unconstitutional.

Kennedy more than disagreed. From the tone of his dissent it is evident that he felt betrayed by his two partners from Casey, and that the ban on partial birth abortion was just the kind of additional state regulation that, in his view, Casey was designed to permit.

In Kennedy's view, Nebraska had made a reasonable (and perhaps commendable) moral choice in limiting a particularly chilling form of abortion, and the Court had no right to second-guess this judgment.

Might Kennedy Vote to Overturn 2000's Stenberg Ruling? Why, and Why Not

Because Kennedy found the majority's decision in Stenberg so profoundly wrong, it is very easy to imagine Kennedy providing the fifth vote (with Roberts, Alito, Antonin Scalia, and Clarence Thomas) to overturn or severely limit Stenberg, and to overturn the federal ban on partial birth abortion. Kennedy could rationalize a departure from stare decisis on the grounds that Stenberg, as a recent 5-4 decision, deserves less respect as precedent than more entrenched decisions, such as Roe.

But one aspect of the pending partial-birth-abortion case may give Kennedy pause. Congress enacted the federal ban in immediate response to the Court's decision in Stenberg striking down Nebraska's very similar law. In this sense, Congress was replaying a scenario from 1989, when Congress passed a federal ban on flag burning right after the Supreme Court struck down Texas's flag burning ban in Texas v. Johnson.

At the time, Kennedy, who had provided the fifth vote in Johnson to strike down the Texas law, did not look kindly on Congress's provocative challenge to the Court's decision, a decision with which he agreed. This time around, however, Congress's analogous response to Stenberg reflects Kennedy's own views on abortion regulation.

Nevertheless, there is some chance that Kennedy will view Congress's decision to flout the Stenberg ruling, and enact a law very much like the Nebraska law the Court had just struck down, as a slap at the Court's authority and a challenge to its prowess as the nation's chief expositor of constitutional meaning.

No one is a more zealous guardian of the Court's power and reputation than Kennedy. Further, no justice takes greater pride in setting aside personal views because to do so is a necessary aspect of being a conscientious judge. Accordingly, Kennedy may see it as his institutional duty to strike down the federal partial-birth-abortion ban even though he strongly believes such a ban ought to be constitutional.

Kennedy's Views on Race and the Law: How Will He Vote on Race-Based Pupil Assignment?

Like Justice Kennedy's vote in the partial-birth-abortion case, Justice Kennedy's vote in the pending race-discrimination case is also uncertain - but for a different reason.

Before the Court are two school district pupil assignment plans (one from Seattle, and the other from Nashville) by which school officials, to maintain a degree of racial diversity in every school, will sometimes use race as a criterion when reassigning students from oversubscribed neighborhood schools. The constitutional question is whether using race in this way offends the Equal Protection Clause.

It is extremely hard to know how Justice Kennedy will approach these cases. Throughout his tenure on the Court, Kennedy has repeatedly expressed his distaste for affirmative action, and he has voted to strike down every race-based affirmative action plan that has come before the Court -- including the diversity-promoting admissions program at the University of Michigan law school that the Court narrowly approved a few years ago.

At the same time, Justice Kennedy has kept a small amount of distance between himself and those justices, such as Justice Scalia, who would deem all affirmative action per se unconstitutional. For Kennedy, the idea of a "color blind" Constitution has always been an ideal, but he's never declared it to be a constitutional absolute.

Instead, Kennedy has accepted the principle that schools may legitimately decide that racial diversity is a compelling education goal, so long as the programs designed to further this goal are extremely narrowly tailored to achieve the stated ends. Thus far, Kennedy has never found a program that satisfies his view of this test.

And it very well may be that the school assignment plans currently at issue before the Court will not satisfy Kennedy either.

Why Kennedy May Feel Different About the Use of Race for Pupil Assignment, Not Admission

Still, as I have discussed in a previous column, the school assignment plans, though they use race as a potential basis for classifying students, are more benign than typical affirmative action admissions programs. And for this reason, it's possible Justice Kennedy may analyze them differently - and decline to hold them to as high a standard as he holds typical affirmative action programs.

Affirmative action admissions programs are, by their nature, anti-meritocratic (though of course, defining "merit" is itself a slippery business). Such programs let minority admissions candidates jump the queue, and move ahead of otherwise-more-qualified students. Unless the qualifications themselves have a racial bias, the programs thus sacrifice academic merit to another goal.

The school assignment plans before the Court, in sharp contrast, are meritocratically neutral. They don't assign any value to race or ethnicity. They simply try to ensure racial diversity in every school by occasionally using race in school assignments - regardless of a student's relative strength as a student.

This does not change the fact that, sometimes, race will determine where a student goes to school. But it does mean that statistically "better" students are not being penalized because another applicant received a race-based "plus" in the admissions process.

Might the Pupil Assignment Program's Anti-Segregation Feel Appeal to Kennedy?

Kennedy is very much an idealist when it comes to race. His antipathy to race-based preferences stems from a belief that such programs make a truly equal society harder, not easier, to create.

But it just may be that the school assignment programs before the Court will strike a chord with him. The image of segregated classrooms is surely one that Kennedy finds unfortunate, and even abhorrent. If he is convinced that race-based school assignment is a necessary tool to avoid the creation of two student societies - one white, and one minority - then this may be the first race-based program he deems constitutional.

In sum, little is certain about this term except that all eyes will be on Justice Kennedy.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.