High Court Tories Target Opinions of O’Connor and Kennedy


WASHINGTON — For years, the Supreme Court has moved left or right only as far as Justices Sandra Day O’Connor and Anthony Kennedy have allowed.

They held decisive votes in a court narrowly divided between liberals and conservatives. Now, however, a more conservative court that includes two men who once worked for Kennedy in the High Court is taking direct aim at the major opinions written by the two now-retired justices.

The court was already considering a dramatic rollback of abortion rights when last week it added cases that could end the use of race in college admissions and limit the reach of the main national law on water pollution, the Clean Water Act.

Kennedy or O’Connor, or both, wrote the opinions that were questioned on all three topics.

“It’s just evidence that the middle or center of the court has shifted dramatically to the right,” said Leah Litman, a University of Michigan law professor who once worked for Kennedy.

Given that Kennedy and O’Connor played central roles in some of the court’s biggest decisions, Litman said, “it’s not particularly surprising to see some of those decisions being attacked.”

A decision on the abortion is expected in early summer. The remaining issues are expected to be debated in the fall and decided by June 2023.

Following Justice Stephen Breyer’s announcement that he is retiring, a new judge is expected to be on the court when he hears the affirmative action and water pollution cases in the fall. But the change is unlikely to affect the results or the balance on a court that will retain a 6-3 Conservative majority.

The first woman to serve on the Supreme Court, O’Connor let it be known more than 12 years ago that she was not happy to see her work ‘dismantled’ by a court that became more conservative when she retired in 2006 and was replaced. by Judge Samuel Alito.

“How would you feel? she said at a College of William & Mary event in Williamsburg, Va., in 2009 when asked what she thought of recent decisions on abortion and campaign finance. which would have been different if she had remained in the field. “I would be a little disappointed. If you think you’ve been helpful and then it’s taken down, you think, ‘Oh my God.’ But life goes on and it’s not always positive.

O’Connor, 91, retired from public life in 2018 when she revealed she had dementia. Kennedy, 85, declined to comment for this story. He stepped down in 2018, his seat being taken by Justice Brett Kavanaugh.

One of three appointed by President Donald Trump, Kavanaugh generally seems more conservative than Kennedy, for whom he once worked. Another Trump appointee, Judge Neil Gorsuch, also reported to Kennedy when he was clerk of the High Court the same year as Kavanaugh.

Abortion rights are facing their toughest test in nearly 30 years. In 1992, O’Connor, Kennedy and Judge David Souter, also now retired, jointly wrote an opinion in Planned Parenthood v. Casey which preserved the right to an abortion up to the point of viability, when a fetus can survive outside the womb.

The court suggested in arguments in December that it would at the very least uphold Mississippi’s abortion ban after 15 weeks, long before viability, and could entirely overturn Casey and the landmark 1973 Roe v. Wade decision.

Last week, judges agreed to challenge O’Connor’s 2003 opinion for the court in Grutter v. Bollinger, who supported considering race among many factors in college admissions.

Kennedy disagreed with the Grutter decision, but in 2016 he wrote the majority opinion that again supported affirmative action in higher education in a Texas case.

Also last week, the court said it would consider an appeal from landowners who were barred from building a home near a scenic Idaho lake. The question is whether their property contains wetlands that make it subject to the Clean Water Act.

In 2006, Kennedy wrote the notice of court review that governs how to decide whether the Clean Water Act applies. This opinion is now under threat.

None of these issues required the court’s attention at this time. The high court intervenes when the lower courts disagree on a legal issue, but this was not the case on abortion and affirmative action.

Even though there was a split over the Clean Water Act, justices had denied several appeals before Kennedy’s retirement and the death of Justice Ruth Bader Ginsburg in 2020.

The new composition of the court therefore seems to be the main motivation for the court’s intervention. In a way, that’s no surprise.

Trump’s three picks were chosen because their view of the law brings them closer to the court’s more conservative justices, Clarence Thomas and Alito, than Kennedy or even Chief Justice John Roberts.

But one striking aspect of this moment is that Kavanaugh and Gorsuch may well provide the votes to overturn the opinions written by their former boss.

Judge Amy Coney Barrett, the third judge appointed by Trump, once worked for the late Judge Antonin Scalia.

Still, some former Kennedy clerks said the former judge was most passionate about his views on gay rights and the First Amendment, and they said those aren’t under threat. Kennedy wrote a series of opinions culminating in a 2015 ruling extending same-sex marriage nationwide, as well as the 2010 Citizens United ruling that opened the door to unlimited independent spending in federal elections.

“He pushed the court toward a broader understanding of the First Amendment. I don’t see the court as doing anything to cut back in that area,” said Misha Tseytlin, a former court clerk now in private practice.

Litman, however, warned that religious exceptions to gay rights rulings making their way through the courts could further undermine Kennedy’s legacy.

“These views are going to be significantly limited when the court says people with religious objections to marriage equality cannot be forced to comply,” she said.

While it’s not yet clear how far the court will go in any of those areas, there has already been substantial movement to the right, said Jonathan Adler, a law professor at Case Western Reserve University in Cleveland.

One way to look at it, Adler said, is to consider that the court had for many years had four liberal justices who had to select a single conservative vote to win.

On gay rights issues, Kennedy was that justice. Roberts provided the crucial fifth vote to preserve the Affordable Care Act.

That has changed, Adler said. Roberts, Kavanaugh and Barrett now appear to be in the middle of a more right-wing court, and for the Liberals to win, “they need two out of those three,” he said. “It’s a dramatic change.”

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