Justice Anthony Kennedy’s Human Rights Legacy: Introduction to the Blog Series

by | Sep 24, 2018

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About Anne Marie Lofaso

Anne Marie Lofaso is the Arthur B. Hodges Professor of Law at West Virginia University College of Law, specializing in labor law, jurisprudence, and constitutional law. She is the Vice President of the West Virginia Advisory Committee to the United States Commission on Civil Rights. She received her D.Phil. in law from Oxford under the supervision of Sandra Fredman.


Anne Marie Lofaso, ‘Justice Anthony Kennedy’s Human Rights Legacy:  Introduction to the Blog Series’ (OxHRH Blog, 24 September 2018) <https://ohrh.law.ox.ac.uk/justice-anthony-kennedys-human-rights-legacy-introduction-to-the-blog-series> [date of access].

Anthony McLeod Kennedy, born on January 23, 1936, to Irish Catholic parents, announced his retirement on June 27, 2018, after thirty years on the United States Supreme Court.  Known as the “swing vote” after Justice Sandra Day O’Connor retired in 2006, Justice Kennedy’s retirement twelve years later, while not unexpected, has created political division in the United States. One the one hand, it has excited conservatives, who are hopeful that Kennedy’s replacement might supply the fifth vote needed to overturn Roe v. Wade (holding that the government may not interfere with a women’s right to choose to have an abortion up until the time the fetus is viable). On the other hand, it has mobilized progressives who are deeply concerned about fate of Roe and similar human-rights jurisprudence that was so hard-fought and won in the past half-century.

This excitement and concern surrounding Justice Kennedy’s retirement must be evaluated in its historic context.  Justices O’Connor, Kennedy, and David Souter, three Republican appointees, wrote the majority opinion in Planned Parenthood v. Casey, reaffirming the central holding of Roe but allowing states to regulate or ban abortions in cases where the fetus is viable “except where [abortion] is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Both sides have framed the issues in human-rights terms – the unborn baby’s right to life and the mother’s right to reproductive health and choice. Accordingly, now that all three so-called moderate justices have retired, the religious right-wing of the Republican Party believes that it will finally cleanse our nation of this moral stain, a view that progressives find difficult to reconcile with their views that the true moral stain is the systemic oppression of women in which reproductive choice plays a large role.

But much more is at stake than Roe v. Wade.  As this series will show, Kennedy was a swing vote on many issues, although his human-rights record is truly mixed.  For example, Justice Kennedy exhibited moral leadership when he carved a path for same-sex marriage in Obergefell v. Hodges.  Kennedy was also the swing vote on many environmental issues, as exemplified by the seminal case, Massachusetts v. Environmental Protection Agency, where Kennedy joined the liberal majority in holding that greenhouse gas emissions such as carbon dioxide were pollutants under the Clean Air Act and therefore subject to EPA regulation.  This decision provided the foundation for the Obama Administration’s crucial climate policies, such as the Clean Power Plan.  By comparison, Justice Kennedy provided a fifth vote needed to sound the death knell of public-sector labour law. In Janus v. AFSCME, the Supreme Court held unconstitutional all union-security clauses (contractual provisions that oblige union bargaining unit members to pay at least a portion of union dues to pay for collective-bargaining related activities such as contract negotiations and grievance-arbitration) in public-sector collective-bargaining agreements.  And in NFIB v. Sebelius, Kennedy would have struck down as unconstitutional the Affordable Care Act (Obamacare), the U.S. healthcare act that was saved not by Kennedy’s but by Chief Justice Robert’s swing vote.

Congress is now set to vote on whether to confirm President Donald Trump’s Supreme Court nominee, Judge Brett Kavanaugh, U.S. Court of Appeals for the District of Columbia Circuit.  This series provides a foundation for comparing Kennedy’s human rights record to that of his replacement, be it Judge Kavanaugh or someone else. Were Kavanaugh to succeed Kennedy, it is likely that the Court would continue to move to the right, with Chief Justice Roberts becoming the new swing vote.

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