Why Justice Kennedy Is Just Like America

O?Connor was a gradualist, a compromiser, a politician who liked to make each side feel that it won something. When she was in the middle in a case, she would, in effect, give one side fifty-one per cent and the other forty-nine. In Planned Parenthood of Southeastern Pennsylvania v. Casey, in 1992, she saved abortion rights; in Grutter v. Bollinger, in 2003, she preserved racial preferences in admissions for the University of Michigan law school; in Rasul v. Bush and Hamdi v. Rumsfeld, in 2004, she repudiated the Bush Administration?s approach to the detainees held at Guant?namo Bay. O?Connor split the difference each time. ... [Kennedy] tended to swing wildly in one direction or the other. When he was with the liberals, he could be very liberal. His opinion in Lawrence v. Texas, the 2003 opinion striking down laws against consensual sodomy, contains a lyrical celebration of the rights of gay people. In Boumediene v. Bush, the 2008 case about the rights of accused terrorists, he excoriated the Bush Administration and Congress. But in his conservative mode Kennedy could be harshly dismissive of women?s autonomy, as in Gonzales v. Carhart, the 2007 late-term-abortion law case. ... Kennedy was not a moderate but an extremist?of varied enthusiasms.

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