Cross-posted from The New Republic.
Justice Anthony Kennedy’s retirement on Wednesday virtually guarantees that the most conservative U.S. Supreme Court in 85 years will become even more so, once President Donald Trump nominates a replacement that the Republican majority in the Senate will surely confirm. It means that Chief Justice John Roberts improbably becomes the so-called “swing vote” on the Court; and that means we ought to expect in the years to come broadened hostility to abortion rights, gay rights, and the constitutional rights of criminals, to name just a few topic areas in which Kennedy’s voice was decisive in tipping the Court’s balance to the left.
We forget now that Kennedy was the third and final Reagan nominee. He made it onto the Court in 1988 only because Reagan’s first choice, Robert Bork, was “borked” by Senate Democrats and because Reagan’s second choice, Douglas Ginsburg, admitted to smoking marijuana. Kennedy has always been a conservative, but his tenure was marked by a cognitive dissonance about his ideological leanings and by the Court’s own persistent march to the right. The switch from Thurgood Marshall to Clarence Thomas in 1991, and the switch from Sandra Day O’Connor to Samuel Alito in 2006, shuffled Kennedy from the court’s right wing to its center.
He didn’t move as far or as fast as the Court around him did; but that doesn’t mean he deserves all of the plaudits he has received from progressives over the years. He was “moderate” in ideology only in contrast to conservative flamethrowers like Thomas, Alito, Antonin Scalia, and now Neil Gorsuch. Compare Kennedy to prior Republican appointees like O’Connor and John Paul Stevens and Harry Blackmun, and his true conservative colors shine through. This term, for example, he did not side once with the Court’s liberals to form that moderate “swing” vote he so often was credited for. And just a few days ago he sided with the Court’s conservatives in upholding a Texas redistricting plan that implicitly endorses partisan gerrymandering and effectively disenfranchises voters.
On the other hand—there was always another hand when it came to this judge—Kennedy did deliver votes on occasion to progressive causes, which now will be imperiled in his absence. For example, he is largely responsible for two major limitations on the use of capital punishment in the United States. In Atkins v. Virginiain 2002 he signed onto a decision that barred the execution of intellectually disabled defendants, a decision he was forced to fortify 12 years later in Hall v. Florida. And in Roper v. Simmons in 2005, Kennedy was the deciding vote in a ruling that outlawed the execution of those who were juveniles at the time they committed murder. Chief Justice Roberts is not going to extend the scope of those cases. Whether he works to narrow them is the open question.
Open-ended is also the broader question of what the Court in Kennedy’s absence will do about gay rights. The first paragraph of the justice’s obituary surely will note his vital role in the same-sex marriage rulings earlier this decade; but the journey the justice took to that historic point began in 1992 with his majority opinion in Romer v.Evans. In that case, long before gay rights were widely accepted, Kennedy and the Court struck down a Colorado ballot initiative that sought to preclude any action to protect gay and lesbian citizens from discrimination. You can draw a straight line from that ruling to Lawrence v. Texas in 2003 to Obergefell v. Hodges in 2015, which struck down same-sex marriage bans across the country.
With Kennedy on the way out, one could argue that the fate of same-sex marriage in the United States is about as secure, or not, as the fate of abortion rights. It’s true that for 25 years Kennedy has largely hewed to the Court’s precedent in Planned Parenthood of Southeastern Pennsylvania v. Casey, which updated and modernized the constitutional right to an abortion first announced in Roe v. Wade. It is also true that whomever Trump selects to replace Kennedy will be an ardent opponent of abortion rights. So, again, the mantle will fall to the chief justice, and the question will be whether his loyalty to precedent, to the doctrine of stare decisis, is more pronounced than his ideological leaning. I am not so sure.
But these liberal “victories” are far overshadowed by all the heavy lifting Kennedy did on behalf of conservative causes over the decades. Let’s focus, for now, on the Court’s post-O’Connor era, starting in 2006. In 2010, Kennedy sided with his fellow conservatives and moneyed interests in Citizens United v. F.E.C, a case in which the Court for the first time recognized that political spending was a form of speech protected by the First Amendment. Justice Kennedy wrote that decision, equating corporations with people, and the grim effects of it on our politics are everywhere around us: from the dark money flowing into campaigns around the country, to the extension of “corporate” rights into other areas of constitutional law.
In areas like religious freedom, Kennedy earlier this month sided, gingerly, against a gay couple who were discriminated against by a Colorado baker who refused to bake them a same-sex marriage wedding cake. Yes, the decision in Masterpiece Cakeshop v.Colorado Civil Rights Commission is an obvious compromise and not the blow that religious activists had hoped it would be; but when you pair it with the Court’s ruling in the Burwell v. Hobby Lobby case, in which Kennedy again sided with his conservative colleagues, it’s not hard to see where this area of the law is heading. It’s headed sharply to the right, at a pace that now will accelerate in Kennedy’s absence.
So, too, will the partisan push for voter suppression accelerate. Five year ago, Kennedy sided with his fellow Court conservatives in Shelby County v. Holder, a case that gutted a key provision of the Voting Rights Act. Countless citizens either already have been or soon will be disenfranchised as a result of that ruling, one of the worst in the court’s long history. Nothing Kennedy has done since 2013 has suggested he has any remorse or regret over how Republican lawmakers around the country reacted to that ruling. Not for nothing, Kennedy also helped spur modern-day voter suppression when he signed onto a 2008 ruling out of Indiana, Crawford v. Marion County, which endorsed voter ID laws now used by Republicans to disenfranchise the poor, the elderly, students, and minority voters.
And don’t forget the guns. Kennedy has voted with the majority in the two seminal gun rights cases of our time. In District of Columbia v. Heller he signed onto Justice Antonin Scalia’s decision, recognizing for the first time a personal right to bear arms under the Second Amendment. And in McDonald v. Chicago he voted to apply that newly-recognized Second Amendment right to state laws through the Fourteenth Amendment. In each instance, the vote was 5–4; in each case, Kennedy voted with the gun lobby and for a view of gun rights that Justice Warren Burger, a Nixon appointee, once called “one of the greatest pieces of fraud” he had seen infect the courts.
He was a consistent voter for employers over employees, for corporations over consumers, and against unions—right down to one of his final votes in the public sector employee union case the Court decided Wednesday in another 5–4 vote in which the conservatives prevailed. He was also a regular voter for police and prosecutors over criminal suspects or defendants, even though he was troubled by prison overcrowding and the persistent overuse of solitary confinement. Right down to last week, in the Fourth Amendment case titled Carpenter v. United States, he was an ardent supporter of government surveillance at the expense of individual privacy rights.
For a judge who has held so many key cases in the palm of his hand over the past decade, for someone perceived by so many as having so much power to shape the course of American law and history, he may have saved his lamest response for last. In Trump v. Hawaii, with religious and racial discrimination rife, all he could muster was a vote for the Trump administration’s travel ban and a mealy-mouth concurrence in which he implored federal officials—who repeatedly have ignored the Constitution—not to ignore the Constitution. He ended thus with a whimper, unwilling to check the implementation of the Trump administration’s bigotry into policy and practice.
Kennedy’s long, slow drift to the center—both real and perceived—says more about the Court than it does about him. He brought to his long work none of the nastiness that marks the jurisprudence of Thomas or Alito or the sanctimony that Gorsuch’s nascent portfolio suggests. His temperament was more of the old school, the gentleman judge; and in that fashion, he was closer to the style of the chief justice (and before him, Justices Souter and Stevens and Brennan). That allowed him, far more than his contemporary Scalia, to build winning coalitions—to put the “swing” in the Court’s swing vote. That is until this term when, on his way out, he failed in one important case after another to find common ground with the Court’s liberal wing.
History will see him as a traditional conservative on the bench, someone very much in tune with the politics and sensibilities of the president who nominated him. Trump would have railed against Reagan the way he rails against anyone else who hews to the conservative principles that animated the 1980s and 1990s. That, too, reminds us of how nasty and intemperate our politics have become since Kennedy’s nomination, and it serves as a warning for what is about to befall us when a man like Donald Trump gets to make his second High Court pick. Lord help us when that judge shows that he, too, is in tune with the politics and sensibilities of the man who nominated him.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.
Image: Flickr/Steve Rhodes, Some rights reserved.