MICHAEL BARONE: The First Amendment was Justice Kennedy’s first priority.
If only.
In my view it makes sense to see Justice Kennedy not so much as a liberal warrior in our culture wars but as a judge who placed an especially high value on the First Amendment freedom of speech. He believed that people should be free to engage in gay sex and that organizations should be free to engage in political speech.
His concern about freedoms of expression characterized his most recent decisions. He scrutinized government efforts to force public employees to pay for political speech they opposed (Janus v. AFSCME) and to force a Christian baker to custom-design a cake for a same-sex marriage (Masterpiece Cakeshop v. Colorado Civil Rights Commission).
This led to legal scholar Rick Hasen’s speculation about retirement to call his recent decisions “final abdications” indicating “a depressing kind of defeatism” and to predict, accurately, his decision to retire. He evidently sees Justice Kennedy as a committed culture warrior for the Left.
But language in some of his most controversial opinions shows not a desire for one side’s total victory as for both side’s friendly accommodation of one another.
If only.
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