Reagan originally nominated Kennedy as an inoffensive alternative to Robert Bork, the far-right judge and legal scholar who became a symbol of Reagan’s radical philosophy. After controversy sank Bork’s nomination, and his equally controversial replacement flamed out after admitting to smoking pot, the quiet, seemingly temperate Kennedy was seen as a sure thing.
Like Gorsuch, not much was known about Kennedy at the time. He left no trail of speeches or law review articles, and he wasn’t a movement conservative. Only a few notable things came up: his decision to strike down a pay equity ruling for women, his 1980 decision to uphold the constitutionality of the Navy’s policy of firing homosexuals, his creation of the “exclusionary rule” (which let police use illegally seized evidence in trial as long as they illegally seized it in “good faith”), and his 1976 ruling that “testers” — people posing as home buyers to expose racist practices — couldn’t bring housing discrimination lawsuits, to name a few.
Although these were acknowledged as red flags at the time, Kennedy was hardly viewed as a Bork-style right-wing firebrand. Even as civil rights advocates raised concerns, Kennedy became someone acceptable to both liberals and the center merely by virtue of not being Bork. Conservatives huffed over his nomination; liberal groups that had mounted a major offensive against Bork stayed silent; and major newspapers published hagiographic pieces that assured readers he was a “restrained pragmatist” who has no “desire to change the modern course of constitutional law” and would “respect precedent.” Liberal law professor Laurence Tribe, who had helped sink Bork’s nomination, testified in his support. Kennedy sailed through the confirmation process.
It didn’t quite turn out that way, however. Kennedy’s confirmation finally gave the Court’s conservatives — Reagan had by then chosen no less than five of its justices — the majority they needed to start whittling away at the advances made by the Warren and Burger courts.
One of the first things Kennedy did on the bench was vote with four other conservative justices to review a 1976 decision that had opened the floodgates to a broad range of discrimination suits — a decision that, ironically, Bork had actually argued in favor of while solicitor general. What was unusual was that, in a departure from standard practice, no lawyer on either side had asked the Court to review the ruling; the conservatives simply decided to take advantage of the Court’s sudden realignment. Thurgood Marshall sharply dissented.
More than a year later, the Court elected not to overturn the 1976 ruling. What it did instead was rule that racist harassment didn’t qualify as illegal discrimination, chipping away at civil rights protections while not triggering wider outrage — an approach that would become a common strategy for the Court.
Other highlights of his first year included: upholding the use of racketeering laws to fight the scourge of pornography; ruling to protect government contractors from being sued for faulty products (in the case in question, a man had died after his helicopter crashed and the escape hatch, which swung out instead of in, couldn’t open under water); and voting that employers did not have to compensate workers for past discrimination over pension benefits because the discrimination had taken place before the adoption of legislation stopping such practices.
He also allowed the drug-testing of federal employees, permitted police to destroy evidence (again, as long as it was in “good faith”), and deemed that law enforcement could safely search for drugs without a warrant by piloting a low-flying helicopter and peeking into people’s yards. In a sign of things to come, he struck down a local law that required 30 percent of Richmond’s city construction funds to go to minority-owned firms, and wrote that he would consider abolishing affirmative action entirely in the future.
“Kennedy is as conservative as any justice nominated by President Ronald Reagan,” wrote the Washington Post in April 1989. “At least as conservative as Bork was expected to be, Kennedy has moved the Court’s center much farther to the right than observers on either side of the ideological divide expected.” He had sided with Rehnquist and Scalia 92 percent of the time. Elated conservatives cheered it as poetic justice for Bork’s defeat, and celebrated that Kennedy was “marching in step” with the Court’s most conservative justices.
It was during his second year that Kennedy and the rest of the Court’s conservatives really started taking aim at civil rights. In a 5-4 decision, they ruled that workers had to prove intentional racist bias to bring an employment discrimination lawsuit, rather than just showing statistics that demonstrated it, overturning an earlier ruling that an NAACP lawyer had called “the most important decision interpreting the fair employment laws.” The Chamber of Commerce said it was “a very good opinion for business” that gave them “more than we hoped for.”
Another identical 5-4 majority narrowed affirmative action and opened the door to a flood of right-wing legal challenges. Kennedy also ruled that executing developmentally disabled murderers and kids who were sixteen or seventeen years old wasn’t unconstitutional. Conservative jurist Bruce Fein gushed that Kennedy had “made this a Reagan Court with a Reagan philosophy in virtually all areas,” while Laurence Tribe called him “Bork without a beard.”
Kennedy didn’t always win. He dissented from a decision that upheld federal programs meant to expand the number of broadcast licenses held by minorities and women, calling it a policy of “racial separation” that created “separate but equal facilities” and comparing it to South African apartheid. He voted against applying the Voting Rights Act to the election of state and local judges. He also voted to allow companies to avoid hiring women for certain jobs on the grounds that it would be a risk to their fetuses.
But for the most part, Kennedy and the other conservative justices — soon fortified by Clarence Thomas’s arrival on the Court — continued rolling back civil rights protections at a steady clip. Kennedy wrote a decision that sharply limited prisoners’ right to habeas corpus petitions. He allowed an all-white county council in rural Alabama to simply take power away from the first black member elected to it.
He also wrote a majority opinion that held that federal courts couldn’t force integration when “the racial imbalance is the product of residential patterns that the officials can’t control,” writing that courts had a “duty” to “return the operations and control of schools to local authorities.” It was a decision that, as observers noted at the time, sharply undermined Brown v. Board of Education, the landmark civil rights case that Kennedy’s colleague, Thurgood Marshall, had been instrumental in winning.
“Instead of the ‘judicial restraint’ that Republicans have long yearned for,” wrote the Times, “this new majority shows contempt for precedent, disrespect for Congress and indifference even to the arguments of this conservative Administration.”
After all this, Kennedy paid tribute to Marshall shortly before the latter’s death by quoting Toussaint L’Ouverture. Kennedy, who had rolled back civil rights advances and irreparably dented Marshall’s greatest legal achievement, coopted the words of the leader of a slave revolution.