Justice Anthony Kennedy is retiring a villain to the left. That’s partly due to a spate of final Supreme Court decisions this summer in which he agreed that the First Amendment applies to Americans—even if those Americans happen to run a pro-life pregnancy center or own a bakery—but mostly due to his creation of an opening for a constitutionalist to take his seat on the court.
Conservatives are are happy, even giddy, for those same reasons, and many are highlighting Kennedy’s opinions in cases involving gun rights and Obamacare as the “good” part of his legacy. But not all Supreme Court cases are equal. There are decisions that are such a great offense to the text of the Constitution and the spirit of the Declaration of Independence that they ought to overwhelm a justice’s legacy. For Kennedy, that decision was Planned Parenthood v. Casey, the 1992 opinion upholding Roe v. Wade.
The editors of National Review and the editors of the Washington Examiner have already taken Kennedy to task for this constitutionally and morally incoherent decision. And there is probably nothing more to say about the merits of the decision that wasn’t said better by the late Justice Scalia in his dissent.
But it’s worth taking an additional minute to think not just about why the reasoning in Casey was so bad but also about how Justice Kennedy came to his decision. As Jan Crawford reported in her excellent book Supreme Conflict, Kennedy initially sided in conference in 1992 with Justices Rehnquist, Thomas, Scalia, and White to overturn Roe v. Wade in the Casey decision and allow state governments to regulate abortion. “But two days after Rehnquist circulated his opinion, Kennedy sent [Justice] Blackmun a private, handwritten note,” Crawford reports.
Kennedy wrote to Blackmun: “I need to see you as soon as you have a few free moments. I want to tell you about some developments in Planned Parenthood v. Casey, and at least part of what I say should come as welcome news.”
As Crawford recounts in her book, the conservatives on the court were growing worried about Kennedy, and Justice Scalia took an hour-long walk with him in the neighborhood in McLean, Virginia where they both lived. “By the end of the walk, Scalia felt confident Kennedy was a solid vote. He went home thinking the five would stand together,” Crawford wrote. “But within a day, an opinion jointly written by Kennedy, O’Connor, and Souter sat on Scalia’s desk. It was the ‘welcome news’ Kennedy had told Blackmun he wanted to share. He hadn’t said a word about it during his walk with Scalia.”
The Casey decision revealed that Kennedy wasn’t only an imperial justice, he was a capricious one too. “Sometimes you don’t know if you’re Caesar crossing the Rubicon or Captain Queeg cutting your own tow line,” Kennedy said in an interview with California Lawyer magazine the morning before the Casey decision was announced. Kennedy was a law professor who became an appellate court judge two years after Roe v. Wade was handed down. He made it through a Senate confirmation hearing and vote to become a Supreme Court justice, read the briefs on the most controversial issue before the court, sat through oral arguments, and initially voted in conference to overturn Roe. Then, apparently on a whim, he changed his mind on a fundamental matter of constitutional law and human rights. And following this period of indecision, he chose not to restore the constitutional right of the American people through their duly elected state representatives to regulate abortion, but arrogated that right to himself.
Back in 2012, I tried to gain some insight into how Justice Kennedy changed his mind in that case. In October 2012, Kennedy was honored by former attorney general Ed Meese, who invited Kennedy to deliver the Joseph P. Story Lecture at the Heritage Foundation. Earlier that year, Chief Justice Roberts had famously switched his vote to uphold Obamacare’s individual mandate, and following Kennedy’s speech I asked him how often justices change their votes after conference. “It doesn’t happen often, but a couple times a year,” Kennedy told me. “Sometimes you write, and it just doesn’t work. And then sometimes what you write doesn’t work for the people who read it. So it does change. Sometimes our votes are tentative, which is why you write. Which is why you write.”
When I asked him about Jan Crawford’s book recounting his change of heart in Planned Parenthood v. Casey, all Justice Kennedy would say was: “A, I didn’t read it, and B, I wouldn’t comment on it if I did.”
