- The Washington Times - Sunday, July 8, 2018

Justice Anthony M. Kennedy’s final term on the Supreme Court may be most remembered for the legal questions he didn’t settle.

Heading into 2018, activists had hoped he would be the swing vote in rewriting the rules for political campaigns by striking down partisan gerrymandering, and would strike a final blow for gay rights by that ruling artisans couldn’t refuse services to same-sex weddings citing religious objections.

Instead, he led the court in punting those cases back to lower courts and then announced his retirement — a move that analysts said virtually guarantees more conservative results when those cases return to the high court.

Legal scholars said he knew what he was doing.

“I’m pretty sure that he knows that any justice that will replaces him is likely to take the view that the court should not intervene in partisan gerrymandering, so I could only conclude that he has decided that he can accept that result,” said Joseph R. Fishkin, a law professor at the University of Texas.



Justice Kennedy spent 30 years on the Supreme Court, and for the final dozen years, after the retirement of Justice Sandra Day O’Connor, he was viewed as the swing vote between the four more conservative justices and the four more liberal ones.

The 2017-2018 term had seemed to offer him more chances to play that role with a tricky case about immigrants’ access to abortion in the U.S. when they aren’t in the country legally, the partisan gerrymandering fight, and the clash between First Amendment rights and same-sex couples all reaching the high court.

In each case, the justices sent the issue back to be more fully developed in lower courts.

Justice Kennedy wrote the opinion in the same-sex wedding case, saying that Colorado and Washington — the two states that had sought to force devout Christian artisans to provide services — needed to do more to prove they weren’t anti-religious.

The move surprised legal scholars because he had been seen as sympathetic to the LGBT community: He wrote the majority opinion in a 2003 ruling that did away with state laws that criminalized sodomy between consenting adults and the opinion in a 2015 ruling that legalized same-sex marriage.

“It seems Kennedy was content with a narrow decision that left big questions for others to confront on another day and that he had no burning desire to reach out to make history as he went out the door,” said Stephen Wermiel, a law professor at American University.

By not fully deciding those legal questions, Justice Kennedy has left the answers to his successor, whom court watchers expect to be more conservative.

“There are a lot of people who expected Kennedy as the moderate, centrist figure on the court to act in a particular way, and they are finding it very hard to square with his decision to leave the new appointment up to [President] Trump and with a Republican-controlled Senate,” said Robert W. Tuttle, a law professor at George Washington University.

“My best guess is that Justice Kennedy was always more conservative — or is more conservative — than most people thought he was,” Mr. Tuttle said.

Justin Walker, a former clerk for Justice Kennedy, said there may have been any number of reasons for punting those cases back to lower courts that don’t reflect the justice’s views.

“It’s not unusual for the Supreme Court to allow some issues to percolate in the lower courts,” he said. “The court will sometimes say it’s a court of final review, not a court of first review.”

With Justice Kennedy headed for the door, court watchers will try to spot the next justice on the pivot point.

The early betting is on Chief Justice John G. Roberts Jr., who, like Justice Kennedy, has sometimes sided with his Democrat-appointed colleagues. He was the deciding vote in a 5-4 ruling to uphold President Obama’s Affordable Care Act, also known as Obamacare.

But Mr. Tuttle said he expects the chief justice to be part of a conservative majority that will rule for the religious service providers and against same-sex couples in the clash over gay weddings.

And he predicted the high court will give the government more leeway in the case of immigrant teens seeking abortions while in government custody. That, he said, could be the beginning of an overall shift on abortion at the high court.

“I expect the court next term to hear one of the cases dealing with shortening the term in which abortions may be obtained,” Mr. Tuttle said.

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