In many important and lasting ways, Mr. Kennedy’s lucky break was a lucky break for the country as well. No Supreme Court justice ever did more to bring the rights of gay and lesbian Americans under full constitutional protection. In his majority opinion in Romer v. Evans, a landmark 1996 case striking down Colorado’s attempt to ban laws protecting gays and lesbians from discrimination, Mr. Kennedy not only forthrightly identified the “animus” at the root of the particular law in question but also declared it an impermissible basis of any such law. Romer proved to be just the beginning of the progress Mr. Kennedy would spearhead, in cases such as Lawrence v. Texas, which struck down all state anti-sodomy statutes in 2003, and, ultimately, the court’s 2015 ruling, Obergefell v. Hodges, also written by Mr. Kennedy, establishing marriage equality. “No longer may this liberty be denied to them,” he wrote, in words that will largely define his legacy. Mr. Kennedy often said a function of courts was to teach; his opinions in these cases not only ratified the gay rights revolution but also accelerated it, by teaching America why it was just.
Mr. Kennedy cast the fifth and deciding vote in Obergefell, as he did in many cases over the past 12 years on a court increasingly and unsettlingly divided between left and right; prior to that, he and Justice Sandra Day O’Connor shared the “swing voter” role on the court. Together, for example, Mr. Kennedy and Ms. O’Connor helped uphold abortion rights in the 1992 case Planned Parenthood v. Casey. Bork never would have done that; the preservation of a woman’s right to autonomy in reproduction is, therefore, also a positive part of Mr. Kennedy’s legacy. Though a strong critic of affirmative action in university admissions, Mr. Kennedy voted to keep it alive in 2016.
Whereas Ms. O’Connor made “minimalist” incremental rulings, Mr. Kennedy tended to rule sweepingly in favor of whatever side he ultimately came down on. If he was a centrist, it was only on average. The same justice who cast a deciding vote in 2005 to abolish the death penalty for offenders under 18, after voting 16 years earlier to uphold it, and who voted to abolish the death penalty for non-homicide crimes, also voted to uphold California’s draconian “three strikes” law, which put people behind bars for 25 years to life if they committed a third felony, even a nonviolent one. Thereafter, he cast the deciding vote in favor of a lower-court ruling requiring California to reduce prison overcrowding.
The same ferocious sense of liberty that fueled Mr. Kennedy’s gay rights jurisprudence and his stalwart defense of free speech could lead him astray at times. The court’s reckless embrace of a constitutional right to individual gun ownership had Mr. Kennedy’s full support. Citizens United, the court’s ill-considered creation of corporate free-speech rights in political donations, was his handiwork. In 2000, Mr. Kennedy was downright obscure, casting a fifth vote to cut short the recount of Florida presidential ballots on a murky theory of equal protection in Bush v. Gore.
That decision, which propelled his party’s candidate to the White House, exposed Mr. Kennedy to accusations of partisanship, which were unfair. His characteristic failing was different: the occasional inability to know his own mind, the downside of the openness and flexibility that generally served him well. He hated the term “swing voter” but showed in word and deed that he accepted the responsibility that came with it, much as the swing justice he succeeded, Powell, also did. It was, specifically, the responsibility to help keep the court, and the country, on an even keel.
Mr. Trump will be eager to use this pick to wrench the court to the right, just as Reagan was when he chose Bork. A Senate battle possibly bloodier than that over the Bork nomination awaits. If it’s extra-bloody because of justifiable Democratic ire over Senate Republican Majority Leader Mitch McConnell’s refusal to give President Barack Obama’s choice a vote in 2016, no one should be surprised. For now, it’s enough to note that we could do a great deal worse than another Anthony M. Kennedy on the Supreme Court. He was, thank goodness, a disappointment to doctrinaire people in his own party and, indeed, to doctrinaire people of all stripes.