The Evolving Court, Justice Kennedy's Paradigm Shift

Due to recent progressive gains as a result of the SCOTUS rulings on the ACA and marriage equality, there has been speculation that the Robert’s court has shifted left of center. However, some have argued that it isn’t the whole court that has shifted but, rather, one particular Justice - Justice Anthony Kennedy. Let’s consider the first possibility; that the Supreme Court, as a whole, has shifted left of center and become more progressive.

When we examine the views of each individual Justice; Scalia, Thomas, Roberts, Kennedy, Ginsburg, Sotomayer, Breyer, Alito, and Kegan, we notice two camps form, a progressive camp and a conservative camp. The consistent conservatives are Alito, Scalia, and Thomas and the consistent progressives are Sotomayer, Ginsberg, Breyer, and Kegan. Those seven, for the most part, rule ideologically. The wildcards, as of late, have been Roberts & Kennedy. It follows that some individuals might be inclined to argue that Roberts is left of center because of his consistent ruling in favor of the ACA. The reality, however, is that Roberts only appears left of center when placed next to the social conservative wing of the court; Scalia, Thomas, and Alito. Roberts is a small-c conservative and tends to rule with the other conservatives on social issues, he’s just not as outspoken as them. After all, he was one of four Justices that ruled against marriage equality and one of five who ruled in favor of Hobby Lobby.

Speaking of marriage equality, that’s what’s really generating all this buzz around Kennedy. We know there’s a solid progressive wing of the court and there’s a solid conservative wing of the court, and we know Roberts more often than not rules with the other conservatives even if he’s not the most ardent supporter of social conservatism. So the question really is whether or not Kennedy has evolved on social issues, has he become more progressive? When Kennedy first entered the court, he was one of two swing votes on the Rehnquist court, the other being O’Connor. O’connor was replaced by Alito, a social conservative, in 2006 which left Kennedy as the only swing vote, especially on issues concerning the LGBT movement. With a court composed of four progressives, three social conservatives, and a small c conservative Chief Justice, Kennedy often finds himself in a position wherein his decision determines whether the court swings left or swings right. While he may not embrace the title, he is very much the swing vote of the court or at least was, until he found solid ground on which to stand insofar as civil liberties are concerned. Kennedy has always been a staunch defender of civil liberties, this support has led to his evolution with respect to the LGBT movement.

However, this gradual adjustment in favor of national marriage equality and against the rights of states to deny a group the right to marry does not mean Kennedy has moved left of center, per se. If we take a macro perspective of Kennedy’s jurisprudence into consideration, we find that in the past he has more often than not skewed right of center. Although Kennedy supports expanding certain civil liberties, like the right to marry whom one loves regardless of sexual orientation, he has yet to come around to a full embrace of progressive ideology. Kennedy is most certainly not the fifth progressive justice, nor can we really call him the fifth conservative justice. Nevertheless, it does seem like his ideological worldview has evolved. We shall see whether he has really moved left of center in the coming months as the court takes women’s reproductive rights and race based college admission practices into consideration.