https://www.city-journal.org/html/anthony-kennedy-15994.html
For conservatives, the retirement of Anthony Kennedy, the Supreme Court’s longest-serving justice, offers an opportunity not seen in generations. If President Trump nominates, and the Senate confirms, a principled textualist and originalist—as he did with Justice Neil Gorsuch, a home-run appointment—the Supreme Court will have a solidly conservative majority for the foreseeable future.
Approaching his 82nd birthday, Kennedy has served on the Court more than 30 years—one of only 15 justices to reach that milestone. He has left his mark in many ways, in no small part because he has served as a “swing” justice between the Court’s conservative and liberal factions for much of his career, essentially holding the fate of the nation’s highest law in his hands.
Conservatives upset with certain results at the Court tend to focus on those areas where Kennedy leaned left—which were often civil rights cases involving groups traditionally facing societal discrimination. Kennedy will probably be best remembered for authoring each of the Court’s major opinions expanding constitutional rights for gay and lesbian Americans (Romer v. Evans (1996), Lawrence v. Texas (2003), United States v. Windsor (2013), and Obergefell v. Hodges (2015)). In Planned Parenthood v. Casey (1992), Kennedy also teamed with fellow GOP-appointed justices Sandra Day O’Connor and David Souter to write a joint opinion that preserved the basic abortion-rights holding of Roe v. Wade (1973). And he ultimately wrote the opinion that preserved much of higher education’s race-based affirmative-action apparatus (Fisher v. Texas, 2016)—even though he had argued against such programs for most of his judicial career, including in his withering dissent in Grutter v. Bollinger (2003).
But it would be a mistake to focus on these civil-rights decisions to the exclusion of Kennedy’s broader, and fundamentally conservative, jurisprudence. Along with his fellow Reagan-appointed Westerners Sandra Day O’Connor and William Rehnquist (named chief justice by Reagan), he was a fairly reliable vote for constitutional federalism, prodding the Court back toward the Founders’ structural limits on Congress. Kennedy, unlike Chief Justice John Roberts, was ready to strike down Obamacare’s individual mandate on federalist grounds in NFIB v. Sebelius (2011).