Justice Consistently Conservative : Kennedy’s Record Sours Liberals’ Victory on Bork

Two summers ago, civil rights activists and liberal legal groups carried out an unprecedented national campaign to defeat conservative Supreme Court nominee Robert H. Bork.

They won, or so they thought. Now it appears they won a skirmish, but lost the battle.

Bork’s spot was filled instead by Justice Anthony M. Kennedy, who in his first full year on the high court has proven to be quiet, steady and consistently conservative--perhaps more so even than Bork.

Thanks to Kennedy, former President Ronald Reagan and his attorney general, Edwin Meese III, gained what they wanted all along: a five-member conservative majority that can roll back the liberal high court rulings of the 1960s and 1970s.

In recent months, the court has been doing just that. In January, the five conservatives cast into doubt government-sponsored affirmative action by declaring that programs that favor blacks be judged just as harshly as programs that discriminate in favor of whites.

Last week, the conservative bloc severely undercut an 18-year-old ruling that had outlawed business’ hiring policies that even unintentionally tended to exclude blacks, Latinos or women.

Not only has Kennedy supplied the conservatives with a reliable fifth vote in these and other key cases, but in areas such as religion and drug testing he has staked out positions to the right of Chief Justice William H. Rehnquist or fellow Reagan appointee Antonin Scalia.

The next three weeks will provide an even better test of how far Kennedy and his conservative colleagues will go in pushing back liberal rulings. In what would otherwise be a minor dispute over state abortion regulations in Missouri, the Bush Administration is asking the conservative bloc to overrule the court’s landmark Roe vs. Wade decision that legalized abortion.

On this and other pending issues, liberal legal activists are now less than optimistic about their chances.

“He’s certainly turning out to be more conservative than we thought,” said liberal scholar Herman Schwartz, an American University law professor.

Said Nan Aron, director of the liberal Alliance for Justice, “I have wanted to give him the benefit of the doubt and hoped he’d been open minded. But more and more, he is resembling an ideological crusader.”

With Kennedy’s posture becoming increasingly clear, legal analysts and the courts are now looking seriously toward a significant change in the way the high court views the Constitution’s protections of individual liberties.

Based on a growing body of case opinions, this could be a period when the law, interpreted more rigidly, will be much more sympathetic to government when it is challenged by individuals, to business when it is challenged by consumers or government and to employers when they are challenged on civil rights grounds.

Would Bring Reversal

That would be a sharp reversal from a trend that began three decades ago, when courts took a much more expansive view of what the Constitution allowed and what it forbade.

Indeed, these days, no one is talking about Kennedy being the swing vote between the liberal and conservative factions on the court. In 1987, when President Reagan nominated the little-known appellate judge from Sacramento, some Democratic senators, perhaps voicing only their hopes, said he might become “another Lewis Powell,” referring to the justice whose seat he would fill.

Powell, a courtly and soft-spoken Virginian, had been a uniquely unpredictable jurist. Less swayed by ideology than the others, he tended to make decisions based on a strict reading of the facts of a case before him. In criminal cases, he often joined the conservatives. In the key civil rights and religion cases, he was often in the liberal camp.

By contrast, Kennedy “is depressingly predictable,” said Duke University law professor Walter Dellinger, a liberal who aided Senate Democrats during the Bork confirmation battle. “If a case comes out 5-4, you know where Kennedy is--with Rehnquist, (Byron R.) White, Scalia and (Sandra Day) O’Connor.”

No Difference in Results

Dellinger readily concedes that the liberals’ victory in the Bork battle has not translated into any liberal victories before the court. “I can’t name a case to this point that would have come out differently” if Bork rather than Kennedy had filled Powell’s seat, he said.

While liberals are now despairing of Kennedy, conservatives are delighted.

“With Kennedy replacing Powell, we now have a court that is more conservative than at any time in the last 40 years,” said conservative court scholar Bruce Fein, a former Reagan Administration official.

He, too, is impressed by Kennedy’s steady conservative voting. “I don’t think I would have forecast him to be this consistent. From the conservative point of view, I don’t think he’s muffed a single vote yet,” Fein said.

Ironically, conservatives could not have expected such consistency from Bork, Fein said. “Bork and Scalia take a more intellectual view. They will vote against you if you make a stupid argument, regardless of who you are,” he said.

For example, Scalia dissented in part when the court in March upheld federal drug testing programs. Attorneys for the government had told the justices that there was no appreciable evidence of drug use in the U.S. Customs Service, but maintained that urine testing of customs agents was vitally necessary anyway.

Kennedy Writes Opinion

Scalia was unconvinced. But Kennedy wrote the majority opinion upholding the testing, concluding that employees’ privacy rights were outweighed by the need to protect public safety.

This is not to say liberals are kicking themselves for having worked to defeat Bork or that conservatives are happy he lost.

“Bork would have been a more powerful conservative influence on the court. He was a crusader, more of a conservative intellectual. Kennedy is not a forceful figure,” said liberal scholar Schwartz.

Fein agrees. “In the long run, Bork would have made a more lasting imprint. His opinions would be read in law schools. They would influence judges. Kennedy doesn’t have the same incisive intellect or writing ability,” he said.

Where Bork was a caustic critic of liberal precedents and given to sweeping pronouncements about the law, Kennedy’s writing is bland and more narrowly focused by comparison.

Writing ‘Colorless’

“His opinions are workmanlike, competent and colorless,” said University of Minnesota law professor Daniel Farber. “Bork would have been an intellectual leader of the court. Kennedy seems to go along.”

But Chief Justice Rehnquist does not need help writing a strong conservative opinion. He has been turning out such opinions for 17 years. Now, thanks to Kennedy’s vote, he can be confident he will speak for the court majority.

Kennedy, 52, joined the court in February, 1988, and soon made a mark. Court rulings issued since then have shown the impact of his fifth solidly conservative vote.

--Shortly after considering a case of the racial harassment of a black bank employee, the conservative majority said the court would reconsider a 20-year ruling applying anti-discrimination laws to private businesses, such as banks, schools or housing developments. Last October, the justices heard arguments on that question, but have yet to issue a ruling.

--Last June, Kennedy supplied the fifth vote to rule that a public school district may charge fees to bus poor students to class and that relatives of deceased servicemen may not sue military contractors for fatal accidents caused by defective products.

--In another 5-4 ruling last June, Rehnquist said federal funds may be given to religious groups so long as they do not teach religion. In a separate opinion, Kennedy and Scalia said it would be constitutional to give public funds to religious groups to teach religion so long as they served a public purpose. If this approach were adopted by the full court, it would allow direct public funding of parochial schools.

--In a 5-4 vote in January, the court said police may use low-flying helicopters to search back yards for marijuana.

--Acting on an appeal last month by a lawyer representing an “unborn child,” Kennedy temporarily blocked a 15-year-old Florida girl from having an abortion. His order was vacated by the full court two days later.

Cases that could provide liberal-vs.-conservative collisions on other key issues wait in the wings. They include appeals on whether juveniles or retarded persons can be executed, whether anti-discrimination laws bar racial bias in private schools and housing, whether religious symbols can be displayed in public buildings, and whether political radicals can be jailed for burning a U.S. flag.

Still, most legal analysts note the caution that it is still early to make firm judgments about Kennedy. In his first year on the court in 1971, Justice Harry A. Blackmun was known as the “Minnesota twin”--a bland clone of his conservative fellow Minnesotan, Chief Justice Warren E. Burger. But two years later, Blackmun wrote the court opinion in Roe vs. Wade legalizing abortion and went on to become a member of the court’s liberal bloc.

“Five years from now, as the issues change, he (Kennedy) may drift toward the center,” said Schwartz. “But I wouldn’t bet on it.”