The decisions of Justice Anthony Kennedy are refreshing in that they are not ideological. The other justices of the United States Supreme Court align their positions more closely with their political parties.
On June 23, Justice Kennedy surprised many when he wrote the majority opinion in Fisher v. University of Texas, reaffirming the principle that public universities may give limited consideration to race when admitting students. He had never voted before to uphold a race-based affirmative action policy. In his opinion, Justice Kennedy concluded that the admissions scheme was a narrowly tailored means of advancing the university’s interest in cultivating a broadly diverse student body. Justice Samuel Alito, a more predictable vote on the court, dissented along with two fellow conservatives noting that “something strange has happened since our prior decision in this case.” 1
Justice Kennedy was also the swing vote that was also a vote for the majority in Whole Woman’s Health v. Hellerstedt. In this case, the Justices struck down the central provisions of a law that Texas Republicans had pitched as a measure to protect women’s health. By requiring abortion providers to have admitting privileges at a nearby hospital and mandating that clinics had to be retrofitted as “ambulatory surgical centers”, the legislatures said they were just trying to make the procedures safer. In oral arguments, this goal was exposed as a poorly veiled excuse to limit access to abortion. Thus, Justice Kennedy voted with the liberals of the court.