Fate Keeps Court On Middle Road Right Can Only Dream Of What Might Have Been

Nine years ago, the Supreme Court nomination of Robert H. Bork went down to defeat in the Senate, and the ripples from that epic fight are still being felt.

In today’s closely divided court, Bork could have created a solid conservative majority. Instead, almost as an afterthought, the vacant seat fell to a soft-spoken Sacramento judge named Anthony M. Kennedy.

And on issues ranging from abortion, flag burning, school prayer, term limits and now gay rights, that switch has made all the difference.

Rejecting Bork’s rigid conservatism, the 59-year-old Kennedy has followed a thoughtful, middle-of-the-road approach that has made him, along with Sandra Day O’Connor, the swing votes on the high court.

“He’s not an ideologue. He’s a traditional conservative,” said Michael Gerhardt, a law professor at the College of William and Mary.

Some Reagan-era conservatives have a different view. “He’s been a bitter disappointment,” said one former adviser to President Reagan after Kennedy spoke for the court in striking down an anti-gay rights law from Colorado. “No one expected this.”

These days, the fierce debates in the Supreme Court are waged between the recent Republican nominees.

Kennedy and O’Connor, along with Justice David H. Souter, practice an old-fashioned type of Republican conservatism: moderate in tone, respectful of precedent and leaning in favor of individual liberty.

In 1992, for instance, the three surprised their conservative allies when they voted together to uphold a woman’s right to choose abortion. Kennedy, while opposing abortion on moral grounds, said he nonetheless concluded the Constitution left such a highly personal choice up to the individual, not the government.

By contrast, Justices Antonin Scalia and Clarence Thomas are champions of an aggressive new cultural conservatism that is symbolized in politics by the Christian Coalition.

The deep divide was on full display in the courtroom Monday.

Kennedy said the Colorado measure that barred gays from even the chance of winning protections from discrimination was unfair.

“It is not within our constitutional tradition to enact laws of this sort,” said Kennedy. It excludes “a certain class of citizens” from “the ordinary civic life in a free society.”

Scalia called Kennedy’s opinion an example of “terminal silliness” which would win favor with “the elite class.”

At one point, he made an analogy between homosexuality and murder.

“I had thought certain conduct reprehensible - murder, for example, or polygamy or cruelty to animals…,” Scalia said. “Surely that is the only sort of animus at issue here: moral disapproval of homosexual conduct. Coloradans are, as I say, entitled to be hostile toward homosexual conduct.”

His fiery dissent was joined by Thomas and Chief Justice William H. Rehnquist.

No one predicted years ago that mild-mannered Kennedy would emerge as a court leader, pushing the brilliant and brashly confident Scalia off to the side to rant in dissent.

But Kennedy has quietly staked out a clear, consistent stand on two of the Constitution’s basic principles: freedom of speech and equal treatment under law.

In 1989, for example, Kennedy cast the deciding fifth vote to strike down the laws against flag burning, saying the act is one of free expression. Similarly, he joined another five-member majority to strike down laws that make it a crime to burn a cross, even in your back yard. Conservatives complained about the first decision, liberals the second.

Kennedy has also stood for a strict equal-treatment standard. For example, he wrote the court’s key opinions that barred prosecutors from using gender or race as a reason for disqualifying potential jurors.

But most often, his equal-treatment approach has led him to cast votes against “affirmative action” programs. The Constitution does not allow “the government to favor some citizens and disfavor others based on the color of their skin,” he wrote in 1990 opposing a federal program that gave blacks and Latinos preferences in awarding broadcast licenses.

“I think Justice Kennedy’s work has always been marked by balance and reason and a moderate tone,” said Stanford law professor Kathleen Sullivan.

“They may have thought they were getting someone who would take up the conservative causes, but that was not Kennedy,” said Gerhardt. “All along, he has been a pragmatic judge, not an ideologue. A true conservative who happens to sit at the dead center of the court.”