An analysis of Kennedy’s voting record during his three decades on the court shows that he voted with the court’s right wing in the majority of cases — including controversial, closely decided cases — throughout his career. And although he was likelier to side with the liberals once he became the court’s swing vote, legal experts say that he occupied the ideological middle ground on relatively few issues. “When you have an odd number of justices, someone is always going to be in the middle, and Kennedy was certainly in the middle a lot,” said Steve Vladeck, a law professor at the University of Texas at Austin. But on many topics, Kennedy was as far to the right as his conservative colleagues. “The reality is that in a lot of cases, we may not see much of a difference between Kennedy and his successor.” [...]
Since he joined the court in 1988, Kennedy voted in a conservative direction about 57 percent of the time — a record that’s nearly identical to that of Chief Justice John Roberts and only slightly less conservative than Justices Samuel Alito, Antonin Scalia and Clarence Thomas. And in close decisions, Kennedy sided with the conservatives 71 percent of the time. That’s not quite as consistently conservative as Roberts, Alito, Scalia and Thomas, all of whom cast conservative votes in at least 80 percent of cases with a five-justice majority, but it’s not exactly moderate either, since we might reasonably expect to see a moderate casting conservative votes closer to 50 percent of the time. [...]
On other issues, Kennedy actually became more conservative as his career wore on. Between the term starting in 2006 and the one ending in 2017, he cast a conservative vote in 23 of the 25 close decisions on economic issues. During this time, he helped shape a broad view of freedom of speech that he used to justify unlimited corporate campaign spending and to strike down regulations on commercial speech. He also sided with the court’s conservative bloc in a wide range of cases that gave companies more power over workers, consumers and organized labor. It was Roberts — not Kennedy — who ultimately voted with the liberals to uphold the Affordable Care Act. And in his last term on the court, Kennedy didn’t side with the four liberals in any close decision. “With the exception of just a few issues, Kennedy voted with the conservative wing of the court in most highly ideological cases,” said Geoffrey Stone, a law professor at the University of Chicago. “I’d hardly call that moderate.”
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