Kennedy's voting record on EEO issues is in line with that of Justice Sandra Day O'Connor, who retired in 2006. Like Kennedy, O'Connor was widely viewed as a moderate conservative, but she also consistently voted with conservatives in close EEO cases, on issues such as federalism (Kimel v. Florida Board of Regents), punitive damages (Kolstad v. American Dental Association), disparate impact claims (Wards Cove Packing Co. v. Atonio), and racial harassment (Patterson v. McLean Credit Union). Kennedy joined O'Connor as part of the conservative majority in each of these cases; the latter two were overturned by Congress when it passed the Civil Rights Act of 1991, which was signed by George H. W. Bush. Because O'Connor's and Kennedy's records on EEO law are closely aligned, we can feel pretty confident that even if President Trump takes the unlikely step of nominating a so-called moderate conservative, the Court's approach to EEO law is unlikely to change.
Many advocates of LGBT rights had been hopeful that Kennedy would side with lower courts that have interpreted Title VII to prohibit sexual orientation discrimination. Justice Kennedy's strong support for gay and lesbian rights might have translated into a willingness to read protections against "sex" discrimination broadly. Then again, however, Kennedy's approach to applying abstract constitutional principles, like liberty, due process, and fundamental rights, is not necessarily a good measure of how he would interpret much more concrete terms adopted by Congress that have settled meanings. In the recent commerce clause case of South Dakota v. Wayfair, Inc., Kennedy, writing for the majority, demonstrated a willingness to support judicial action where Congress had failed to step up to the plate. Would Kennedy have felt similarly with respect to Congress's failure for over 40 years to adopt measures to prohibit sexual orientation discrimination? We'll likely never know.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.