To the Dismay of Some, Justice Kennedy’s No Bork

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 and Sandra Day O’Connor the most important members of 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,” one former Reagan advisor said Monday 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 among 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 that the Constitution left such a highly personal choice in the hands of the individual, not the government.

By contrast, Justices Antonin Scalia and Clarence Thomas are champions of an aggressive new cultural conservatism that is symbolically represented in politics by the Christian Coalition. They support states’ rights and prayer in public schools and oppose abortion and homosexuality as abominations.

Repeatedly, Scalia has said that he sees no duty to adhere to precedents with which he disagrees and he has been slashing in his attacks on those who disagree with him, labeling opinions by Kennedy and O’Connor “perverse,” “irrational,” “silly” and a “jurisprudential disaster.”

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

Kennedy said that the Colorado measure, which barred gays from even the chance of winning protections from discrimination, was unfair and un-American.

“It is not within our constitutional tradition to enact laws of this sort,” said Kennedy, whose thin face sports a tiny pair of wire-rimmed glasses. It excludes “a certain class of citizens” from “the ordinary civic life in a free society.”

It was “born of animosity” to one group of citizens and would achieve “no legitimate government purpose,” he concluded in a measured voice. The 6-3 ruling nullified it.

Then it was Scalia’s turn. Sounding angry and disgusted, he 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 the mild-mannered and professorial Kennedy would emerge as a court leader, pushing the brilliant and brashly confident Scalia off to the side to rail 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. Indeed, Kennedy has been the court’s most steady proponent of free speech.

In 1989, for example, Kennedy cast the deciding fifth vote to strike down the laws against flag burning, saying that 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 own backyard. Conservatives complained about the first decision, liberals the second.

Last year, he wrote a 5-4 majority opinion saying that a state university could not deny equal funding to a student magazine simply because it espoused a Christian perspective. Kennedy viewed the issue as one of free speech and equal treatment, and Scalia, Thomas and Rehnquist joined him.

But three years before, Kennedy had disappointed that conservative trio when he cast the deciding fifth vote to block a cleric’s prayer at a public school graduation ceremony.

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.

States’ rights conservatives were also touting term limits for members of Congress, a drive that fell one vote short because of Kennedy.

In a long opinion, Thomas argued that states created the federal government and therefore can limit the terms of lawmakers who serve it.

Kennedy, casting the deciding vote, disagreed. “The national government . . . owes its existence to the act of the whole people who created it,” he wrote. Because the U.S. Constitution sets no term limits for members of Congress, the states cannot override this uniform approach, he said.