Supreme Court Justice Anthony Kennedy yesterday compared to the right wing uproar to his Obergefell opinion to the public outcry which followed the court’s ruling that flag burning is a form of free speech.
Kennedy, who was the deciding vote in both cases, described how the reaction decades ago was critical at first but changed over time. His remarks at the 9th Circuit Judicial Conference were his first public comments since he wrote the decision last month that put an end to same-sex marriage bans in 14 states. Kennedy drew the comparison in response to a moderator’s question about how justices weather reaction to closely watched rulings. “Eighty senators went to the floor of the Senate to denounce the court,” he said of the 1989 ruling. “President Bush took the week off and visited flag factories, but I noticed that after two or three months people began thinking about the issues.”
Kennedy believes that controversial rulings such as Obergefell “draw down on a capital of trust” which the court replenishes with less controversial rulings.