Michael Barone: The First Amendment was Justice Kennedys first priority

By Michael Barone It became official just after lunchtime on Wednesday just after the Supreme Court announced its final decisions of the term and went into recess. Justice Anthony Kennedy the 104th person to serve on the Court is retiring effective just after his 82nd birthday next month after 30 years of service. Justice Kennedys decision announced in a two-paragraph letter to President Trump has been predicted and both eagerly anticipated and dreaded for years now. He has been the swing vote in several noteworthy for some notorious cases going back to the early 1990s and in many has been the author of the opinion of the court. Appointed by President Ronald Reagan after two earlier nominees failed to be confirmed Kennedy has long been feted by many liberals for these stands. Since the early 1990s he has stood against repealing the 1973 Roe v. Wade decision legalizing abortion. Starting with his decision overturning a sodomy conviction in 2003 he has opposed discrimination against homosexuals and was the author of Obergefell v. Hodges the 2015 decision that legalized same-sex marriage. Kennedy joined mostly Democratic-appointed colleagues in taking what were considered liberal stands on other issues as well including the death penalty for young offenders judicial review for Guantanamo detainees and state laws attempting to strengthen or supplement federal enforcement of immigration laws. On these conservative legal scholars looked askance. Some ridiculed Kennedys flowery language in decisions like Obergefell. Some classed him with other Republican-appointed justices who sided regularly with liberals. But thats an overstatement. Justice Kennedy came out on the same side as Republican-appointed colleagues on the Second Amendment on partial-birth abortion bans on the unconstitutionality of bans on political speech on subjecting states to special voting rights scrutiny based on evidence from 1964 and 1972. In legislative redistricting cases he professed to see no neutral principle distinguishing plans that were unconstitutionally partisan from those who werent. Any verbal formula he apparently believed would just leave judges free to rule for their partisan friends. And in every one of the past years 19 cases decided in 5-4 votes he came out against the four Democratic-appointed justices. In my view it makes sense to see Justice Kennedy not so much as a liberal warrior in our culture wars but as a judge who placed an especially high value on the First Amendment freedom of speech. He believed that people should be free to engage in gay sex and that organizations should be free to engage in political speech. His concern about freedoms of expression characterized his most recent decisions. He scrutinized government efforts to force public employees to pay for political speech they opposed (Janus v. AFSCME) and to force a Christian baker to custom-design a cake for a same-sex marriage (Masterpiece Cakeshop v. Colorado Civil Rights Commission). This led to legal scholar Rick Hasens speculation about retirement to call his recent decisions final abdications" indicating a depressing kind of defeatism" and to predict accurately his decision to retire. He evidently sees Justice Kennedy as a committed culture warrior for the Left. But language in some of his most controversial opinions shows not a desire for one sides total victory as for both sides friendly accommodation of one another. In Obergefell Justice Kennedy took care to recognize that religions and those who adhere to religious doctrines may continue to advocate with utmost sincere conviction that by divine precepts same-sex marriage should not be condoned." In Masterpiece Cakeshop Justice Kennedy followed through on this writing To describe a mans faith as one of the most despicable pieces of rhetoric that people can use is to disparage his religion in at least two distinct ways: by describing it as despicable and also by characterizing it as merely rhetoricalsomething insubstantial and even insincere." This sounds not so much like legal argumentation as like a plea that combatants in the culture war should show respect even friendship for each other. The Senate probably will confirm Justice Kennedys successor this fall" as Majority Leader Mitch McConnell R-Ky. quickly promised despite hysterical predictions that abortion will be criminalized and same-sex marriage abolished. But Justice Kennedys central legacy is his firm defense of the First Amendment. Against Californias claim that its law requiring pro-life pregnancy counselors to promote abortions is forward-looking" Kennedy wrote It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it." First things first.