WASHINGTON >> For years, the Supreme Court moved to the left or right only as far as Justices Sandra Day O’Connor and Anthony Kennedy allowed.
They held pivotal votes on a court closely divided between liberals and conservatives. Now, though, a more conservative court that includes two men who once worked for Kennedy at the high court is taking direct aim at major opinions written by the two justices, now retired.
The court already was weighing 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 nation’s main water pollution law, the Clean Water Act.
Kennedy or O’Connor, or both, wrote the opinions that have been called into question on all three topics.
“It’s just evidence that the middle or center of the court has moved dramatically right,” said Leah Litman, a University of Michigan law professor who once worked for Kennedy.
Since Kennedy and O’Connor played pivotal roles in some of the court’s biggest decisions, Litman said, “it’s not particularly surprising to see some of those decisions come under attack.”
A decision on abortion is expected by early summer. The other issues are expected to be argued in the fall and decided by June 2023.
Following Justice Stephen Breyer’s announcement that he is retiring, a new justice is expected to be on the court when it hears the affirmative action and water pollution cases in the fall. But the change is unlikely to affect the outcomes 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 being “dismantled” by a court that grew more conservative when she retired in 2006 and was replaced by Justice Samuel Alito.
“What would you feel?” she said at a College of William & Mary event in Williamsburg, Virginia, in 2009, when asked what she thought about recent abortion and campaign finance rulings that would have come out differently had she remained on the court. “I’d be a little bit disappointed. If you think you’ve been helpful and then it’s dismantled, you think, ‘Oh dear.’ But life goes on. It’s not always positive.”
O’Connor, 91, withdrew from public life in 2018 when she revealed that she has dementia. Kennedy, 85, declined to comment for this story. He stepped down in 2018, his seat filled by Justice Brett Kavanaugh.
One of three appointees of President Donald Trump, Kavanaugh generally appears to be more conservative than Kennedy, for whom he once worked. Another Trump appointee, Justice Neil Gorsuch, also reported to Kennedy when he was a high court law clerk the same year as Kavanaugh.
Abortion rights are facing their stiffest test in nearly 30 years. In 1992, O’Connor, Kennedy and Justice David Souter, also now retired, jointly wrote an opinion in Planned Parenthood v. Casey that preserved the right to an abortion until 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 ban on abortions after 15 weeks, well before viability, and could overrule Casey and the 1973 landmark Roe v. Wade decision entirely.
Last week, the justices agreed to take up a challenge to O’Connor’s 2003 opinion for the court in Grutter v. Bollinger, which sustained the consideration of race among many factors in college admissions.
Kennedy dissented from the Grutter decision, but in 2016, he wrote the majority opinion that again upheld affirmative action in higher education in a case from Texas.
Also last week, the court said it would consider an appeal from landowners who have been blocked from building a house near a scenic Idaho lake. The issue is whether their property contains wetlands that bring it under the Clean Water Act.
In 2006, Kennedy wrote the court’s controlling opinion that governs how to decide whether the Clean Water Act applies. That opinion is now under threat.
None of these issues demanded the court’s attention at this moment. The high court steps in when lower courts disagree about a legal question, but that was not the case on abortion and affirmative action.
Even if there was a split over the Clean Water Act, the justices had turned away several appeals before Kennedy’s retirement and the death of Justice Ruth Bader Ginsburg in 2020.
The changed composition of the court, then, appears to be the prime motivation for the court’s intervention. In one sense, that’s no surprise.
Trump’s three picks were chosen because their outlook on the law put them closer to the court’s most conservative justices, Clarence Thomas and Alito, than to Kennedy or even Chief Justice John Roberts.
But a striking aspect of this moment is that Kavanaugh and Gorsuch could well provide the votes to undo opinions written by their former boss.
Justice Amy Coney Barrett, the third justice named by Trump, once worked for the late Justice Antonin Scalia.
Still, some former Kennedy clerks said the former justice was most passionate about his opinions on gay rights and the First Amendment, and they said those are not threatened. Kennedy wrote a series of opinions culminating in a 2015 decision extending same-sex marriage nationwide, as well the Citizens United decision in 2010 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 clerk now in private practice.
Litman, though, cautioned that religious carve-outs to gay rights rulings working their way through the courts could further undermine Kennedy’s legacy.
“Those opinions are going to be substantially limited when the court says people with religious objections to marriage equality can’t be forced to comply,” she said.
While it’s not yet clear how far the court will go in any of these areas, there has already been a substantial move 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 for many years had four liberal justices who needed to pick off a single conservative vote to prevail.
On gay rights issues, Kennedy was that justice. Roberts provided the crucial fifth vote to preserve the Affordable Care Act.
That’s changed, Adler said. Roberts, Kavanaugh and Barrett now seem most likely to be the middle of a more right-leaning court, and for the liberals to win, “they need two out of those three,” he said. “That’s a dramatic shift.”