2018-07-04 / Home

Jewish liberals, conservatives often agreed—and disagreed—with Kennedy


Supreme Court Justice Anthony Kennedy is shown at a White House ceremony, April 10, 2017. 
JTA photo by Eric Thayer/Getty Images. Supreme Court Justice Anthony Kennedy is shown at a White House ceremony, April 10, 2017. JTA photo by Eric Thayer/Getty Images. NEW YORK—

Not an hour after Anthony Kennedy announced his retirement as associate justice on the Supreme Court, the National Council of Jewish Women tweeted its dismay.

“Justice Kennedy’s retirement could drastically shift the balance of the Supreme Court, and threaten the very rights and liberties we’ve fought so hard to protect,” NCJW tweeted. “We need a justice who will stand up for all of our rights—not just the wealthy and powerful.”

NCJW’s is a voice of the Jewish liberal majority, which tends to support abortion rights, a strong divide between church and state, an extensive social welfare safety net and a liberal approach to immigration.

For that majority Kennedy was, at least since 2005, the essential and persuadable swing vote on an ideologically partitioned court. He was responsible for the 5-4 rulings that legalized same-sex marriage and preserved Roe v. Wade. Although prone to disappoint liberal and centrist groups—upholding President Barack Obama’s policy of warrantless wiretapping, voting to limit campaign finance restrictions in Citizens United and removing key provisions of the Voting Rights Act—he was nevertheless seen as the last check on what is likely to become a deeply conservative court.

“In the last few years, Justice Kennedy has loomed large at the Supreme Court because he so often cast a deciding swing vote, often in historic ways, as in [same-sex marriage] or Citizens United,” Marc Stern, general counsel at the American Jewish Committee, told JTA. “While he was not the liberal justice many Jews would no doubt have preferred, he served as a reminder that constitutional law and the Supreme Court can be something other than pure predictable partisan politics.”

And as a swing vote, Kennedy’s rulings on religious liberty also won him support from conservative Jewish groups. His vote proved decisive in the Hobby Lobby case, which found that family-owned corporations need not pay for employee contraception insurance if doing so violates their religious values, and earned praise from Orthodox groups like the Orthodox Union and Agudath Israel of America.

“The Court’s ruling stands for the proposition that—even when the government seeks to implement valuable policy goals—it must do so without trampling upon the conscientious beliefs of American citizens,” the Orthodox Union said following Hobby Lobby decision, adding that “there are many other ways to meet the policy goals without infringing on religious liberty.”

Kennedy, who will be 82 when he retires effective July 31 and is the 14th longest-serving justice, decided countless cases regarding religious liberty, many of which were important to—and divided—American Jews on all sides.

Kennedy, as reflected in his invention of the famed “coercion test,” believed that religious liberty, based upon the First Amendment, while expansive, did not mean the government could make certain religious behavior mandatory.

“Whether he was good or bad for the Jews depends on where you think the Jews ought to be,” Stern told JTA, also noting, however, that “he’ll be missed.”

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