Abortion rights activists clash with anti-abortion activists outside the Supreme Court to mark the second anniversary of the Court overturning Roe v. Wade on June 24, 2024 in Washington, D.C.
Same-sex and heterosexual couples renewed marriage vows at United Methodist Church in Palm Springs, Calif. on Jan. 1, 2020.

WASHINGTON — When then-Supreme Court Justice Anthony Kennedy wrote the opinions in a series of major gay rights cases, he was surprised – and disappointed − by the vehemence of the opposition from some of his colleagues.

That was particularly true for the 2015 blockbuster decision legalizing same-sex marriage nationwide, Kennedy recounts in a forthcoming memoir.

Justice Antonin Scalia lashed out against the right to same-sex marriage and also took a personal swipe at Kennedy.

Scalia’s attack “weakened his opinion, enabling me to shrug it off,” Kennedy wrote in “Life, Law and Liberty,” being published Oct. 14 by Simon & Schuster. But Kennedy’s family was “devastated by the tone of the dissent.”

Kennedy, though, had plenty of experience being at the center of polarizing issues.

'The cases swung, not me'

After joining the court in 1988, the Reagan appointee emerged as its ideological center, bridging the gap between liberal and conservative justices by being open to siding with either bloc.

By the time he stepped down from the court in 2018, Kennedy had been the swing vote on major issues including abortion, affirmative action, gay rights and capital punishment, often siding with the court’s more liberal justices.

Time magazine called him “the Decider.”

Kennedy, however, never liked being referred to as the swing vote.

“The cases swung, not me,” he wrote.

Though often a thorn in conservatives’ side, Kennedy nevertheless regularly voted with the court’s right-leaning bloc. He wrote the court’s majority opinion in Citizens United v. FEC, for instance, enabling corporations and outside groups to spend unlimited amounts of money on elections. And he joined the 5-4 majority in Bush v. Gore to stop the Florida recount of the 2000 election, a ruling that effectively cleared the way for George W. Bush to become president of the United States.

Kennedy considered stepping down over abortion

About a decade earlier, Kennedy had wondered if his lifelong anti-abortion views meant he should step down from the court.

“Because of my ever-constant belief that life must be protected from the moment of conception, I struggled with the idea that the Constitution should allow some choice to end a pregnancy,” wrote Kennedy, who is a devout Catholic. “The struggle led me to wonder whether it would be wrong for me, morally, to stay on the Court if doing so would require me to rule under the law that women have the right to end a pregnancy in its early, pre-viability stage.”

In the end, Kennedy decided that resigning would have sent the message that his judicial oath to protect constitutional rights was not binding in difficult or controversial cases.

Kennedy also had a practical reason. If he resigned, his successor might be “less concerned about protecting the unborn.”

In 1992, he helped craft the plurality opinion in Planned Parenthood v. Casey, which upheld a woman’s right to an abortion even while permitting new state restrictions.

The decision didn’t match his personal beliefs, Kennedy told his daughter the day it was released, but he had to “honor the rule of law.”

Retirement helped Republicans create a solidly conservative court

Kennedy’s retirement more than two decades later helped solidify conservatives’ control of the court. In 2022, the court overturned both Planned Parenthood v. Casey and its precursor, the 1973 Roe v. Wade decision.

The 5-4 vote to overturn Roe was backed by Justice Brett Kavanaugh, a former Kennedy clerk who President Donald Trump appointed to succeed Kennedy. (Justice Neil Gorsuch, another former Kennedy clerk and Trump appointee, also joined the majority to overturn Roe.)

Kennedy doesn’t say in his memoir what he thinks of that majority opinion. But he does explain his own switch on a different issue.

Key shift in vote against executing minors

Sixteen years after voting to uphold the death penalty for juveniles, Kennedy agreed in 2005 that executing minors violated the Constitution’s ban against “cruel and unusual punishment.”

The standards of decency had evolved, Kennedy wrote in the 5-4 majority ruling, which also pointed to the "overwhelming" international opinion against the death penalty for juveniles.

In his memoir, Kennedy said that judges must “be willing to consider principles and approaches that may offer new insights over the passage of time.”

The march of time also allowed people to become more aware of the injustices suffered by the LGBTQ+ community, he said.

Because there was tension between gay rights and many Americans’ religious views – tension that left Kennedy himself conflicted – he was assigned to write the majority opinions in those cases.

Gay-marriage opinion passed the 'refrigerator test'

One of his top goals in Obergefell v. Hodges, the gay-marriage decision, was “not to dilute the meaning and significance of marriage by adopting the tone of: 'Oh, we might as well allow same-sex marriage, since it does not hurt conventional marriages,’” he wrote.

Instead, Kennedy wanted to elevate both heterosexual and same-sex marriages to reaffirm “the respect and love which all of us seek.”

He also wanted the opinion to be short and clear enough that Americans could easily understand the reasoning.

Kennedy felt that he achieved that after someone told him the opinion had passed the “refrigerator test" because people were taping key passages to their refrigerator doors.

And the letter writers − both gay and straight − who’ve told Kennedy they’ve read from the decision at their weddings reassured him “that our opinion gave dignity to their decision to spend their lives together.”

Patching up after rift with Scalia

Kennedy also patched things up with Scalia.

For months after the Obergefell decision, Scalia rarely joined the justices for lunch or stopped by Kennedy’s chambers to chat.

But about a week before he died in 2016, Scalia told Kennedy he’d come to deeply regret the tone of his dissent and its personal references.

What had bothered Kennedy the most was Scalia’s assertion that the Supreme Court justices – whom he said were deciding the gay marriage issue in place of the voters − were not representative of the nation in their backgrounds and didn’t even include a genuine Westerner because “California does not count.”

Kennedy took great pride in his California roots and wrote that his worldview was defined by the West.

“He apologized for being intemperate,” Kennedy wrote. “We both smiled, and the matter was resolved.”

When Scalia’s wife called to tell Kennedy her husband had died, she told him how much their reconciliation had meant to Scalia.

“We sometimes agreed and sometimes disagreed,” Kennedy wrote, “but I respected him and miss him very much.”

This article originally appeared on USA TODAY: Kennedy memoir sheds light on former center of Supreme Court gay rights, abortion rulings

Reporting by Maureen Groppe, USA TODAY / USA TODAY

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