It’s sometimes too easy to mock Anthony Kennedy, and people sure have done a lot of it over the years. He can seem infuriatingly unmoored. He agonizes over his decisions. He’s been known to change his mind in a case or two. And his writing style is about as grand as his ornately decorated chambers in the Court.
But in yesterday’s landmark abortion case, Kennedy was the Associate Justice he believes himself to be.
“If I say something,” Kennedy told me in the summer of 2006, “I want to stick with it.”
I’d asked Kennedy how he thought he and Sandra Day O’Connor were different. He seemed frustrated by her approach to the law, and he suggested she was simply more willing to walk away from positions she’d taken in previous cases.
“I think I may adhere somewhat more closely to whatever standard I come up with,” Kennedy said.
It seemed obvious during our talk that Kennedy had a case in mind: Stenberg v. Carhart, the Court’s decision in 2000 that struck down state laws banning partial birth abortion.
Outrage is probably not a strong enough word to describe his reaction to that decision. Kennedy felt betrayed. He’d gone along with O’Connor and David Souter in Planned Parenthood of Pennsylvania v. Casey in 1992, when the three joined forces and refused to overturn Roe v. Wade.
In Casey, Kennedy initially had cast his vote with Chief Justice William Rehnquist, who’d written an opinion that would have overturned Roe. At the last minute, he changed his mind and teamed up with O’Connor and Souter, providing the critical fifth vote that instead saved Roe.
But eight years later in Stenberg, he thought O’Connor and Souter took Casey in a direction he never intended.
Are you talking about Stenberg, I asked during our talk.
“I thought the Casey standard was one in which we said that the states do have a role,” he said tersely, “and that was not followed in Stenberg.”
And that was all he was going to say about it.
Until yesterday, in Gonzales v. Carhart. Kennedy’s majority opinion can be summed up this way: This is what I agreed to in Casey.
His decision is arguably the Court’s most significant abortion decision since Roe v. Wade. And that’s not because it’s the first time the Court allowed a law that banned a substantive abortion procedure.
Yesterday’s decision is a blockbuster because it completely retools the abortion debate.
It says, emphatically, states do have a role. States can make moral choices. States have a legitimate interest in protecting and promoting the life of the unborn—and therefore in actively discouraging abortion.
That’s going to produce a monumental shift. In practical terms, it will encourage states to consider other regulations to limit abortion, and it clearly indicates states can pass stronger informed consent laws. That means we’ll see more laws like the one in South Carolina, which would require women to see ultra-sounds of their fetuses before having abortions.
That’s not to say states can ban abortions. Kennedy (and therefore this Court) isn’t going to overturn Roe. But they can discourage them.
Kennedy thought the Court made that clear in Casey. But when Stenberg rolled around eight years later, the Court put its focus elsewhere. Kennedy was left writing a bitter dissent, one that basically came down to “I thought I’d agreed to something entirely different in 1992.”
And he wrote an equally impassioned dissent in Hill v. Colorado, an abortion protest case decided the same day as Stenberg. In that case, Kennedy said the Court’s decision against the protesters “strikes at the heart of the reasoned, careful balance I had believed was the basis for the joint opinion in Casey.”
“The joint opinion in Casey considered the woman’s liberty interest and principles of stare decisis, but took care to recognize the gravity of the personal decision,” he said in his dissent in Hill.
And then he quoted a huge chunk of what he said in Casey: ‘[Abortion] is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted.’”
I can still remember his voice shaking as he read parts of the dissent aloud from the bench.
In Gonzales v. Carhart, Kennedy’s majority decision didn’t overturn a single case. He’d insist it didn’t depart from precedent. He’d violently disagree with editorials—like the over-the-top one in today’s New York Times—that said the Court “gutted a host of thoughtful lower federal court rulings, not to mention past Supreme Court rulings.”
To Kennedy, that’s what the Court did in Stenberg, when it ignored key interests he thought were so important in Casey. Yesterday’s partial birth decision, he’d say, just took the Court back to what he’d said in Casey, when he provided the key fifth vote that preserved Roe.