Supreme Court Justice Anthony Kennedy has long marched alongside Chief Justice John Roberts on race.
That has changed. Kennedy’s evolution has occurred against a backdrop of heightened national conflicts over race — on urban streets, on university campuses and in the presidential campaign — and as Kennedy approached age 80 and just finished his 29th term on the court.
He has expressed new concerns about racial progress in his opinions, and the sentiment of this swing-vote justice could make a difference in future race cases, including those affecting voting rights and the ongoing litigation over state electoral rules.
The Kennedy evolution coincides with recent lower court decisions rejecting new voter restrictions and implicitly calling into question the Supreme Court’s glossy picture of life for blacks and Hispanics in its 2013 case that scaled back the landmark Voting Rights Act.
Three years ago, the high court invalidated a portion of the 1965 act requiring federal review of proposed electoral changes in states with a history of discrimination, mainly in the South. In his opinion for the majority, Roberts voiced a repeated refrain that “conditions that originally justified these measures no longer characterize voting … things have changed dramatically … the nation is no longer divided along those lines … history did not end in 1965… our country has changed.”
Lower court decisions in recent weeks, particularly a July 29 ruling against a North Carolina law that targeted black voters, have countered that positive vision. But any notion of robust racial progress might already have faded at the Supreme Court itself.
Kennedy was one of the four conservatives who joined that 2013 Roberts’ opinion in Shelby County v. Holder. Since then, in two major cases, Kennedy separated himself from the chief justice and was receptive to policies to remedy discrimination and encourage diversity.
Kennedy has become more aligned with liberal justices, which could change the outcome of any new race case regardless of who eventually succeeds conservative Antonin Scalia, who died in February.
Kennedy has been the decisive vote with liberals before, on watershed social issues such as on same-sex marriage. But on race, he typically joined conservatives. A 1988 appointee of President Ronald Reagan, Kennedy had voted against racial policies in employment, contracting and university admissions, as well as on redistricting and voter regulations.
There have been some difference with Roberts in the past, as in 2007 when Kennedy rejected public school policies that took account of students’ race for district-wide diversity but did not go as far as Roberts in trying to bar such measures under all circumstances. Now, the variance is gaping and has made a difference in bottom-line rulings.
A closer look at two cases that followed Shelby County reveals the change.
In that 2013 decision freeing designated states from federal “preclearance” for new election regulations, Kennedy joined Roberts’ decision that emphasized the “great strides” made for racial minorities at the polls. Justices Scalia, Clarence Thomas and Samuel Alito also joined.
“Things have changed in the South,” Roberts wrote, echoing his view from a 2009 voting rights case.
The federal appeals court that heard the recent North Carolina dispute observed that the day after the court dropped the preclearance requirement state legislators pushed for tougher voting rules. “African-Americans were poised to act as a major electoral force,” the appeals court said, but then the legislature instituted a requirement for photo IDs that blacks disproportionately lacked and decreased the early-voting days that blacks used more often than whites.
The Supreme Court has not heard a voting case akin to the Shelby County, Alabama, dispute since 2013. In 2015, however, amid new racial turmoil sparked by shootings in Ferguson, Missouri, and elsewhere, Kennedy took a different position on racial progress as another civil rights law born of the 1960s came before the court.
The new case, from Texas, tested whether the 1968 Fair Housing Act covered not only intentional bias but also claims of statistics-based indirect discrimination, for example, that blacks are more likely to be turned down for mortgage loans.
The answer seemed a likely no, given the conservative majority’s previous views on related issues. But Kennedy surprised lawyers on both sides of that fair housing case when he joined the four liberal justices to allow claims of indirect bias that, for example, keep minorities from buying homes in better neighborhoods.
“Much progress remains to be made in our nation’s continuing struggle against racial isolation,” Kennedy wrote, as Roberts, Scalia, Thomas and Alito dissented.
Another Kennedy shift emerged at the end of the recently completed term. He wrote June’s decision upholding a University of Texas admissions policy giving a boost to black and Hispanic applicants.
Veering from his sentiment in a 2003 University of Michigan case, Kennedy said a university has “considerable deference” to ensure student diversity. “It remains an enduring challenge to our nation’s education system,” he wrote, “to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”
It was the first time Kennedy voted to endorse a university’s race-conscious admissions policy.
Alito seemed to be calling out Kennedy when he wrote in a dissenting opinion that “something strange has happened” since 2013 when the court first heard the case begun by Abigail Fisher, a white applicant who failed to win a place at the flagship Austin campus. Joined by Roberts and Thomas, Alito cited earlier Kennedy opinions against racial remedies.
Now, it seems plain Kennedy would no longer sign unequivocally onto the rhetoric of racial progress woven throughout the Shelby County decision. And lower court judges’ recent renderings of conditions for minorities might even give him pause about the necessary reach of the Voting Rights Act in America today.
