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When can-a-D (Kennedy), be an R?

Updated: May 3, 2020

A Ronald Reagan appointee who joined the country’s highest court in 1988, Justice Kennedy has a mixed record at best. Attorneys arguing before the court frequently talked of “speaking to Kennedy,” as he was often the only justice whose vote could not be reliably predicted from past opinions.

Yet on same-sex marriage, Kennedy became a rock for the LGBTQ community.

After joining the Supreme Court, Justice Kennedy often voted more conservative on criminal law issues, voting to uphold the constitutionality of workplace drug-testing for railroad workers after accidents, and for employees of the U.S. Customs Service. On other issues, he has favored the right to personal privacy over the state’s police power.

Kennedy wrote the Court’s opinion invalidating a provision in the Colorado Constitution denying homosexuals the right to bring local discrimination claims. In 2003, he wrote the majority opinion in Lawrence v. Texas, invalidating the criminal prohibitions against homosexual activity between consenting adults. He joined Justices Sandra Day O’Connor and David Souter in a plurality opinion in the case of Planned Parenthood v. Casey (1992), which re-affirmed the Roe v. Wade decision recognizing the right to abortion while permitting some state restrictions.

All that said, the current debate about his replacement, I feel, is absent of one important fact...Justice Kennedy's timing. Keep in mind that he was appointed by a Republican president, and despite his "swing vote" reputation, he could have easily waited until after the midterm elections to determine if a "blue wave" was in fact going to happen. But would that make him regret his decision to wait, or make him glad he didn't.

All of this harkens back to the decision that Comey had to make, remember? Is it more or less political to make a monumental decision that could potentially affect the trajectory the country goes in before an election or after it?

So while our politicians argue the validity or applicability of the Biden and McConnell rule, let's not forget, Justice Kennedy chose the timing, and I'd argue he knew exactly what he was doing.

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