The good, the bad and the ugly about 'King Kennedy' and his legacy on the Supreme Court

We don’t know yet which conservative constitutionalist President Trump will nominate to the Supreme Court to replace retiring Justice Anthony Kennedy, in an effort to solidify the five-member majority needed to help restore our constitutional republic.

But we do know that liberals will launch what may be the vilest, nastiest, most vitriolic propaganda war ever against whoever the president nominates – no matter how sterling his or her professional credentials are.

There is no question that Justice Kennedy, who announced Wednesday that he will retire July 31, has a good record in protecting First Amendment freedoms, including religious liberty and free speech. This was demonstrated in cases such as Burwell v. Hobby Lobby, which struck down the contraceptive mandate of ObamaCare for closely held companies; and Citizens United v. Federal Election Commission, which threw out a ban on independent political expenditures.

Kennedy was also a staunch supporter of the Second Amendment, supplying the crucial fifth vote in District of Columbia v. Heller, the 2008 case that upheld the right of individual Americans to keep and bear arms. He was among the four dissenters in 2012 who voted against the constitutionality of ObamaCare in National Federation of Independent Business v. Sebelius.

In the high court’s term that just ended this week, “King Kennedy” – called that because he has been the deciding swing vote in so many cases – sided with the conservative block of the court in all 19 cases that were decided by a 5-4 vote.

These 5-4 cases included the critical decisions issued by the court this week when it upheld President Trump’s travel ban in Trump v. Hawaii; threw out an Illinois law that forced government employees to pay dues to unions they refused to join in Janus v. AFSCME; and found that a California law forcing pro-life pregnancy centers to post information about free abortions violated the First Amendment in NIFLA v. Becerra.

The 2010 Citizens United decision, in which Kennedy wrote the majority opinion, demonstrates some of his best work in upholding First Amendment rights. He wrote in the opinion: “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. …For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence. … The First Amendment confirms the freedom to think for ourselves.”

Unfortunately, Kennedy had a bad habit of siding with the liberal justices when it came to “politically correct” social issues and causes, such as capital punishment, abortion and gay rights.

Kennedy was the essential fifth vote in Obergefell v. Hodges, the 2015 decision that created a constitutional “right” to gay marriage, overriding the rights of the states to decide this policy question. Kennedy’s majority opinion is a mishmash of philosophical meanderings, or what Chief Justice John Roberts might call “sociological gobbledygook,” rather than a real interpretation of the text and meaning of the Constitution and applicable law.

Justice Antonin Scalia wrote a scathing dissent criticizing the Kennedy opinion’s “showy profundities” and “straining-to-be-memorable passages” and calling attention to the “threat to American democracy” that it represented.

In one of his most memorable footnotes, Scalia said that if “as the price to be paid for a fifth vote” he ever joined such a “profoundly incoherent” opinion, he “would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

Kennedy was also the unfortunate author of Boumediene v. Bush, which extended the writ of habeas corpus (the right to go to court to contest imprisonment) to jihadist terrorists. As Scalia said in his dissent, Kennedy “for the first time in our Nation’s history” conferred “a constitutional right” on “alien enemies detained abroad by our military forces in the course of an ongoing war.”

This was, once again, the creation of a constitutional right by Kennedy where none exists because the “writ of habeas corpus does not, and never has, run in favor of aliens abroad”  Scalia said. He said this would have “disastrous consequences.”

Roberts added in his eloquent dissent that with this decision, the American people would “lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.”

And in an especially ugly 2008 case, Kennedy v. Louisiana, Justice Kennedy led the four liberal justices of the Supreme Court in eliminating the death penalty in an especially gruesome case involving a defendant who was charged with the aggravated rape of his 12-year old stepdaughter, who he had been sexually abusing since she was age 8. Justice Kennedy did this despite writing that this crime “was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on” the victim.

The good, the bad and the ugly of Kennedy’s legacy is that he faithfully applied the Constitution and applicable law as written – except when he didn’t. While he was on the right side of many outstanding decisions, he also authored and was on the wrong side of some very bad decisions.

President Trump now has the opportunity of nominating a justice who will vote more consistently to uphold the Constitution and the rule of law. To do that, the president needs to make sure he picks a nominee who has a written record demonstrating faithfulness to those principles and, most importantly, has not backed down when he or she has come under fire from academia, the media and the progressive left.

The president needs a justice who doesn’t care what MSNBC, The Washington Post and The New York Times say about him or her – a justice who realizes that winning the approval of these left-leaning news organizations means he or she must be doing something wrong.

Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation.  He is the coauthor of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk” and “Obama’s Enforcer: Eric Holder’s Justice Department.”