Skip to main content

It's time to stop saying Anthony Kennedy was a "swing justice" on the United States Supreme Court. He told students at Harvard Law School, years ago, that he didn't see himself as a "swing justice." And any review of his decisions bears that out. He is, in fact, a standard Reagan era, corporatist, racist, misogynist judge, who happened to write a couple of opinions that reflected one small area of decency in his work.

Anthony Kennedy Did Not Swing

Anthony Kennedy did deserve respect for the opinions he wrote on gay rights and same sex marriage. But giving that respect also means understanding the context in which those opinions and his underlying views were formed. Kennedy went to law school when many law schools still resisted admitting non-whites and women. He went from law school to private practice in San Francisco and Sacramento, and then on to the bench in San Francisco. His brief private practice was with all white Republican power brokers while Reagan was governor.

He is, in fact, a standard Reagan era, corporatist, racist, misogynist judge, who happened to write a couple of opinions that reflected one small area of decency in his work.

In San Francisco, Kennedy was exposed to the city's large homosexual community, at least the "upper class" white fringe of it. With homosexual attorneys in important law firms and homosexual judges, Kennedy learned that they are just people, like everyone else. Neither evil nor saintly. And that many were wealthy, white, and as corporate friendly and racially bigoted as he was. His friendship with barely closeted Pete Wilson probably helped his understanding.

Familiarity breeds understanding and acceptance rather than contempt. Anthony Kennedy's same sex marriage and gay rights opinions were a natural result of spending decades working with and learning from gay attorneys, judges and law firm and court staff.

But neither his early life, nor his law practice, nor his years on the bench gave him exposure to working class people, or to black people, or to Hispanic people. Even now, thirty years after Kennedy left San Francisco for the Supreme Court, San Francisco law firms struggle to treat women with anything approaching equality. Kennedy was raised by racist parents, in a racist environment, and has clung to those early teachings for his entire life. His acceptance of gay people is an anomaly, far removed from his general beliefs about non-white, non-male, non-"normal" people. And with the Masterpiece Cakeworks v. Civil Rights case he has now repudiated even that.

As a child in Sacramento, Kennedy saw life dominated by World War II, and was taught early that the subhuman, slit-eyed monsters that he saw on cartoons, were responsible for war, were a grave threat to the war industries that filled the Sacramento delta, all the way to San Francisco Bay, and the Pacific Ocean. And were an equal sabotage threat to the vast fields of corporate farms surrounding Sacramento, on which a nation at war depended for its food supply.

And he understood the need for locking up those slit-eyed monsters, as a national priority.

When the local men were taken off the farms to fight in the war, he learned to see waves of Mexican workers, imported to work the fields in place of the men gone off to war. And he learned to see them as interloping, racially inferior invaders, when they sought to keep their jobs when soldiers came back from the war. It was the Mexicans' fault, not the corporate farmers' fault that wages were lower for the returning soldiers.

There is no difficulty seeing the real Anthony Kennedy when reviewing his opinions. People say that he voted to preserve Roe v. Wade and women's right to control their own bodies. Kennedy himself denies this. As early as 1989, he publicly said that he wanted to reverse Roe v. Wade, but felt bound by rules of precedent. In 1990, he voted to uphold prohibitions on abortions for teen girls who were not emancipated. In 2000, he voted to criminalize D&C abortions. And he now chooses to quit at a time that he can feel confident that a new 'justice' will vote to overturn Roe v. Wade.

Kennedy was firmly against any pollution controls that affected corporate profits. In 2009, he wrote the opinion in Couer Alaska, Inc. v. Conservation Council, holding that although Federal Law prohibits dumping waste into any "river, lake, stream or ocean", there should be an exception for a company that planned to dump MILLIONS OF TONS of toxic sludge waste into a local lake. The only rational for the exception was that it was necessary to dump the toxic waste onto the taxpayers to clean up, if the corporation was to keep profits high.

Kennedy voted to destroy the Voting Rights Act, after 99 Senators voted that the Act was still needed to protect black voters across the south. And he compounded that this spring by enthusiastically upholding racial gerrymandering laws, and by encouraging states to strike black, Hispanic and other non-white, and poor voters off their voting rolls. With similar racism, Kennedy voted whenever he could to advance "states' rights" and to end affirmative action, regardless of any scientific evidence to support it.

Scroll to Continue

Recommended Articles

Kennedy wants more guns on the streets of America. Or at least on the inner city streets and in poor neighborhoods, where children learn early to ignore laws and settle disagreements with guns. He has voted to expand gun ownership, including by children, at every chance.

Kennedy wrote the majority opinion in Citizens United , writing explicitly that corporate buying of politicians, particularly politicians of his party, did not constitute "corruption." Until Citizens United, corporations were held not to be people, and could be regulated to control the damage that their businesses inflicted on society. Kennedy worked to overturn that legal history.

In Hobby Lobby v. Sebelius, he voted to give corporations the right to claim "religious belief" and therefore, exemption from any law. Thus, the mining corporation in the Couer Alaska case could, under Kennedy's 'reasoning,' claim that polluting the environment was merely an act of religious devotion, trying to bring the apocalypse sooner.

In his votes this term, Kennedy sought to enshrine his right wing bona fides and to lay the groundwork for undoing some of his earlier opinions. In Masterpiece Cakeworks v. Civil Rights, he sought to undermine all of his gay rights decisions by voting to allow religious pretenders to discriminate against gays, blacks, Chinese, Democrats, and whomever they like based on claims of religious belief. His decision was a clear, unambiguous indication that he wants the Court to wipe away his earlier gay rights opinions.

The Masterpiece Cakeworks case was part of a pattern in rightwing jurisprudence. In 1989, Kennedy had spoken about respect for precedent. But under the leadership of John Roberts, the Court has abandoned any pretense of respect for precedent, and Kennedy has enthusiastically agreed. Throughout U.S. history, 1st Amendment law held that people could believe anything they wanted, but that they could not act on religious beliefs if such actions would injure other people. The Masterpiece Cakeworks opinion discarded that tradition, and held that any action is permissible, so long as it is framed in the pretense of religious belief.

Kennedy wrote too many things that were simply factually and logically impossible to support. His few "swing" opinions all have a dimension that is favorable to a ruling class or to corporate interests. It is simply not honest to say that he was anything other than a rightwing corporatist 'justice.'

In an amusing article just after Kennedy announced his retirement, a writer claimed that Kennedy wrote in a recent opinion a warning against people misconstruing his career and opinions. The writer said that Kennedy was asking the press to portray him as a moderate, sensible, honest man trying to do right. Ridiculous. What Kennedy wrote was a dog whistle to the corporations and wealth interests he has so faithfully served. He wrote a reminder that he has earned lucrative speaking contracts and visits to lavish resorts for corporate gatherings around the world, and that he expects to be rewarded for his rightwing loyalty.

tom hall

As a final gesture of where he actually stands, and stood for his thirty years on the Court Anthony Kennedy went to the White House to give the Donald the good news about his retirement. He could have waited until the fall, before the new Court term started, to announce his retirement. But that would have guaranteed that a vote on his successor would happen after the fall elections.

Kennedy supports the Donald and his policies. He can see the potential for a Blue Wave in November, and he committed himself to avoiding the consequences of such a Blue Wave. He ensured that the Donald and Mitch McConnell would have the chance to move the Court back to the days of Plessy v. Ferguson, Dred Scott and other historical stains.

When John Roberts wrote his opinion, this term, in Trump v. Hawaii, he knew that Kennedy was leaving the Court and giving the Donald another appointment. Roberts wrote that his opinion was not resurrecting the odious Korematsu v. United States case. But, as with other Roberts and Kennedy opinions, this one said one thing while meaning another. Kennedy embraced the idea of segregating bearded Moslem monsters on the basis of their religion. Just as Korematsu approved segregating slit-eyed Jap monsters on the basis of their race.

No matter whom the Donald appoints to Kennedy's seat on the Court, the Korematsu and Trump v. Hawaii cases are going to be cited when the Republican Supreme Court upholds the Donald's family separation policy, when it finally reaches the Court. Kennedy knew this, he intended this. He has made this his legacy for all time.

He told Harvard students that he is not a swing justice. History will confirm that claim. The more legal historians analyze his cases, the worse he will seem, both as a Supreme Court 'justice' and as a racist, misogynist, xenophobic and religiously bigoted person.

Tom Hall

Tom Hall