By Vann R. Newkirk II, theatlantic.com
During his tenure on the nation’s highest court, Justice Anthony Kennedy was certainly nothing close to liberal. Even his fabled credentials as a “swing” justice have been burnished a bit beyond his actual court work. In every 5-4 decision this term that saw liberal Justices Sotomayor, Ginsburg, Breyer, and Kagan united in dissent, Kennedy has provided the deciding vote for conservatives each time. He’s been a major voice or deciding vote in some of the cases that have been the biggest recent boons to the GOP cause, from Citizens United to Shelby County v. Holder. In the last 20 years of conservative dominance over multiple branches of governments at the federal and state levels, Kennedy’s name will be mentioned in the ranks of the victors.
Yet, his idiosyncrasies, and the cases where he diverged from conservative orthodoxy, provided real hope for advocates on the left. With his retirement now imminent, those hopes are all but dashed. In the jurisprudence developed on racial justice and civil rights in the five decades since the close of the civil-rights era, Kennedy was enough of a wildcard to ensure that the Court often affirmed and protected core civil-rights victories, even as mainstream conservatism turned squarely against them. But now, the winds of change are blowing. The post-Kennedy Court is primed to see some potentially paradigm-shifting cases on race and racial justice in the near future.