Justice Kennedy’s new friendsLAST June, the Supreme Court capped its most liberal term in decades by backing a right to same-sex marriage and rescuing Obamacare from a second near-death experience. One year later, contrary to expectations, the justices have delivered another series of rulings to vex conservatives. These outcomes owe something to the death of Antonin Scalia halfway through the term. But it is unlikely that the court’s rulings in two of the most politicised issues of recent decades—abortion and affirmative action—would have come out the other way had Scalia lived. The justice responsible for steering the court to the left was Anthony Kennedy, Scalia’s fellow Ronald Reagan nominee.
On June 23rd Justice Kennedy surprised many when he wrote the majority opinion in Fisher v University of Texas, reaffirming the principle that public universities may give limited consideration to race when admitting students. He had never voted before to uphold a race-based affirmative action policy. But by a 4-3 vote (Elena Kagan recused herself), Justice Kennedy and three liberal colleagues rebuffed...Continue reading
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