How Feminists Should Remember Justice Kennedy

This week, Justice Anthony Kennedy, a Reagan appointee to the U.S. Supreme Court, announced his retirement. The announcement punctuated a devastating week from the Court. An alarming slate of 5-4 rulings—that will surely define the Roberts’ Court—upheld the Trump administration’s third attempt at a Muslim ban, truncated the rights of public unions, struck down a California law enacted to promote women’s health and protect them from fraud and deception at crisis pregnancy centers and passed the baton back to Texas in a high-profile gerrymandering decision.

For many, Kennedy’s retirement, effective July 31, signals a worrying period ahead for the Supreme Court. They wonder what comes next on important civil liberties and civil rights issues. Pundits and his fellow Justices suggest that there will be a void on the Court; they point to Kennedy’s commitment to the dignity of persons as part of what they believe will be his enduring legacy. Kennedy’s pivotal record on marriage equality in the landmark Obergefell v. Hodges and United States v. Windsor decisions certainly speaks to that.

Others note Kennedy’s record, even recently, on abortion rights as a sign of his judicial independence and objectivity on women’s rights. This, some suggest, will be a robust and lasting legacy. In Whole Woman’s Health, which struck down two Texas laws that unconstitutionally burdened women’s access to abortion, Kennedy joined Justices Breyer, Ginsburg, Kagan and Sotomayor in the majority.

Yet Justice Kennedy’s record is far more complicated. This week, he voted with the majority in each of the aforementioned cases; he was less of the “swing” voter that pundits memorialize him to be.

That may be the correct way to remember his tenure.

According to one study, Kennedy was far more likely to vote with Justice Clarence Thomas, regarded as the most conservative justice on the Court, than Justice Ruth Bader Ginsburg (84 to 76 percent). He was more likely to find affinity with Chief Justice Roberts than Justice Elena Kagan (88 to 80 percent). And he voted more often with Justice Antonin Scalia than he did with any liberal on the Supreme Court.

Those who care about women’s health and rights should be concerned about Justice Kennedy’s retirement, but not for the reasons offered by pundits who frame his retirement as a grave loss on women’s issues. It would be as much as a mistake to ignore Kennedy’s pivotal vote in Whole Woman’s Health as it would be to conflate or exaggerate his record on women’s rights and health—or to overstate the Supreme Court’s legacy with regard to women.

Despite crucial advancements in the rights of women and girls brought about through legislative and judicial victories, the Supreme Court has historically shown antipathy—or at best, disregard—for the rights and concerns of women. The Court sanctioned forced sterilization and eugenics against poor women in Buck v. Bell, an infamous decision yet to be overturned. It affirmed states’ denial of women’s suffrage, refused to strike down laws denying women opportunities to become lawyers;, deferred to states that denied women the right to serve on juries and more.

In reality, Justice Kennedy failed to demonstrate a consistent and courageous regard for the interest of women or their reproductive rights. Some might argue that it was the failure of his liberal colleagues to persuade him to their interpretation of the Constitution, or that the right cases did not land before the Court during his 30-year tenure to compel or motivate him to move the needle on women’s rights. But what is clear, in a line of defining cases, is that Justice Kennedy has sided with a conservative, all-male majority.

This includes writing for the majority, upholding a Bush-era federal law to ban an abortion procedure in Gonzales v. Carhart. Based on no credible empirical evidence, the otherwise careful Justice claimed that long-term mental health suffering “and loss of esteem can” result from pregnancy terminations. Kennedy disregarded a robust empirical record, including amici briefs, pointing out the fallacy of that argument.

Justice Kennedy also cast crucial votes, just to name some recent examples, limiting women’s rights to file suit under Title VII of the Civil Rights Act for gender pay claims in Ledbetter v. Goodyear Tire & Rubber Co, denying women plaintiffs class action status to sue Walmart based on gender discrimination in Wal-Mart v. Dukes and finding “that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law…they judge incompatible with their sincerely held religious beliefs” in a case denying female employees contraceptive coverage—Burwell v. Hobby Lobby.

Justice Kennedy’s significant regard for the dignity of marriage equality must be acknowledged—for it moved the Court out of a shameful past. But Justice Kennedy’s record must also be measured by his concerns for the dignity of women—and we should remember his lack of vision for a Constitution that could embrace their highest ideals.


Michele Bratcher Goodwin is a prolific thoughtleader on matters of constitutional law and health policy. In addition to Ms. magazine, Dr. Goodwin's commentary can be read in The Atlantic, The New York Times, the Nation, CNN and The L.A. Times, among others. She holds the Linda D. & Timothy J. O'Neill chair in constitutional law and global health policy at Georgetown Law School and serves as the co-faculty director of the O'Neill Institute for National and Global Health Law. She is the executive producer of Ms. Studios.