The Supreme Court’s embrace of gay rights last week had an almost serene majesty. The obvious correctness of the Court’s judgment, its curt dismissal of a monstrous injustice, had a grandeur that requires little elaboration. Yet the decision had its roots in something prosaic and largely forgotten: the midterm elections of 1986. Until that point in Ronald Reagan’s Presidency, the loyal opposition was more loyal than opposed to the genial Californian in the White House, but Democrats came roaring back, winning control of the Senate with eight new seats. It took Reagan and his aides some time to recognize the realignment on Capitol Hill. After the resignation of Lewis F. Powell, Jr., from the Court, in 1987, Reagan nominated Robert Bork. He would have been an ideological twin to Antonin Scalia, who had been confirmed with ease the previous year. But the Democrats in the Senate, especially the new chairman of the Judiciary Committee, Joseph Biden, picked a fight over Bork and defeated his nomination by fifty-eight to forty-two. In response, Howard Baker, the former senator turned White House chief of staff, urged Reagan to acknowledge the new political realities and make a more moderate choice. Reagan did; he selected Anthony M. Kennedy.
In Kennedy’s twenty-five years on the Court, the Justices have handed down three major decisions vindicating the rights of gay Americans. In 1996, in Romer v. Evans, the Justices invalidated a Colorado law that preëmptively barred any attempt to protect gay rights; in 2003, in Lawrence v. Texas, they ruled that gay people could not be criminally prosecuted for having consensual sex; and last week, in United States v. Windsor, they declared unconstitutional the odious and ill-named Defense of Marriage Act (DOMA). Anthony Kennedy wrote all three opinions. There’s little evidence that Reagan cared much for gay rights, but Republican moderates—that vanished species—played an important role in his Administration, and Kennedy has reflected their libertarian kind of tolerance during his long and consequential tenure.
DOMA denied all the federal benefits of marriage to same-sex couples who were wed under state law. To a degree rare in the dusty archives of the Supreme Court, Kennedy’s opinion striking the law down is a pleasure, even a thrill, to read. He can be windy and verbose at times, but the Windsor opinion is bracingly plainspoken. “DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others,” Kennedy wrote. “The principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.”
The Windsor case reached this happy conclusion because of the courage of the gay citizens who decided to stand up and fight, especially Edith Windsor, the widow who had been denied the federal tax benefits that surviving spouses are entitled to; because of the skillful advocacy of their lawyers, notably Roberta Kaplan, the private counsel who argued for Windsor, and Donald B. Verrilli, Jr., the Solicitor General, who put the Obama Administration on the right side of this case, and of history; and because of Kennedy and his four colleagues in the majority: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.
But the real reason that Windsor, and the country, won was that Democrats won—in the eighties, when the Senate turned down Bork, and in 2008, when Barack Obama defeated John McCain. To an extent that the public and, especially, the Justices themselves rarely acknowledge, the Supreme Court is a political body. It reflects, above all, the values and the priorities of the Presidents who nominate the Justices and the senators who confirm them (or refuse to do so). There is a lingering mythology that Justices turn out to surprise the Presidents who appoint them to the Court. That was last true during the Eisenhower Administration. It is inconceivable that any modern Republican would nominate Justices in the mold of Kennedy. George W. Bush’s choices for the Court—John G. Roberts, Jr., and Samuel A. Alito, Jr., who both voted to uphold DOMA—still represent the Republican prototype. It is a similar guarantee that Obama—or, perhaps, a President Hillary Clinton—will nominate Justices who will protect and expand gay rights.
To be sure, Kennedy reflects the less salutary aspects of the Reagan legacy as well, and that side of his character was also on display last week. In Shelby County v. Holder, Kennedy joined with Roberts, Scalia, Alito, and Clarence Thomas to gut the Voting Rights Act, the crowning achievement of Lyndon Johnson’s Great Society. Like Reagan, who disgraced himself by opening his 1980 general-election campaign in Neshoba County, Mississippi, the scene of a notorious murder of civil-rights workers, Kennedy has a blind spot when it comes to race. Immediately after the Shelby County decision, states and counties in the South announced that they would take advantage of the ruling to jam through legal changes that will make it harder for minorities and poor people to vote. Also last week, Kennedy was at his Delphic worst in a case challenging the admissions program at the University of Texas at Austin. Kennedy criticized the university’s approach to affirmative action but suggested, vaguely, that some racial preferences might be tolerated; pity the poor admissions officers who try to make sense of the opinion. In any case, judicial restraint is not Kennedy’s style. He was the only Justice to vote to overturn both DOMA and the key provision of the Voting Rights Act, even though Congress had passed them with overwhelming support. Characteristically, too, Kennedy was the only Justice to be on the winning side in both cases.
Polls show that about fifty-five per cent of the American people now support same-sex marriage. Roughly the same percentage of the nine Justices seem to feel the same way. (The Justices rarely stray too far from public opinion.) And, as with the public, the trends on the Court are all heading in a clear direction. Twelve states and the District of Columbia allow same-sex marriage today; thanks to the Court’s decision last week in the Proposition 8 case, California will almost certainly soon join the list. The next piece of unfinished legal business is to guarantee the right to marriage equality in the rest of the country. Some states, like Oregon and Illinois (after a false start this year), will probably end their prohibitions in the next year or so. But ultimately the Supreme Court will have to step in to complete the nation’s journey on marriage equality, just as it did in Loving v. Virginia, from 1967, when the Justices rejected the last remaining bans on interracial marriage. Kennedy’s opinion in Windsor makes plain that that day is drawing ever nearer. Scalia, as it happens, saw this more clearly than anyone. “The real rationale of today’s opinion,” he wrote in his dissent, “is that DOMA is motivated by a ‘bare . . . desire to harm’ couples in same-sex marriages.” And he added, “How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.” Scalia’s declaration was meant as a threat. We should consider it a promise. ♦