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Analysis

Did Anthony Kennedy Just Destroy His Own Legacy?

American democracy is plainly weaker than it was when he took his seat, says Michael Waldman.

June 28, 2018

‘Amer­ican demo­cracy is plainly weaker than it was when he took his seat’

Justice Kennedy over­all leaves a mixed legacy. His rulings on marriage equal­ity and LGBT rights are prop­erly considered land­marks. But when it comes to the state of Amer­ican demo­cracy, Kennedy’s record is consequen­tial and corros­ive. Amer­ican demo­cracy is plainly weaker than it was when he took his seat, thanks to the times he ruled—and the times he failed to act.

Start with campaign finance. Kennedy authored Citizens United. He trans­formed the case from a tech­nical ruling on elec­tion regu­la­tion to a block­buster that upen­ded a century of law. Every gauzy word of it bears his imprint. “The censor­ship we now confront is vast in its reach,” he warned. “The govern­ment has muffled the voices that best repres­ent the most signi­fic­ant segments of the economy.” In his dissent, John Paul Stevens respon­ded, “While Amer­ican demo­cracy is imper­fect, few outside the major­ity of this Court would have thought its flaws included a dearth of corpor­ate money in polit­ics.”

It’s a fash­ion­able legal take to say that Citizens United did not really matter. It just followed on Buckley v. Valeo and other misguided opin­ions. Major corpor­a­tions did not leap to splurge directly on campaign ads. But over­all, it was a disaster. It signaled a nearly total dereg­u­la­tion of campaign finance in the United States. The lower court rulings author­iz­ing Super­PACs (such as Speech Now) flowed directly from it. Today, campaigns are increas­ingly domin­ated by undis­closed dark money, office­hold­ers spend shock­ing amounts of time rais­ing funds, and hostile foreign powers real­ize that our loop­hole-filled laws offer ample oppor­tun­ity for mischief. Most seri­ous pres­id­en­tial candid­ates must first find a billion­aire buddy to bank­roll a race (or be a billion­aire them­selves). Only now are we seeing Citizens United’s true costs in corrup­tion and collapse of public trust.

On campaign finance, at least, Kennedy displayed the cour­age of his convic­tions. On voting rights cases, he simply went along with other conser­vat­ives.

On gerry­man­der­ing, it was not his decisions but his inde­cision that under­mined demo­cracy. Here, he knew what was wrong, knew the court could do some­thing about it, and then decided to do noth­ing. He opined that partisan gerry­man­der­ing could be uncon­sti­tu­tional with the right stand­ard, then dithered for over a decade. This term, the court took two major cases on extreme partisan gerry­man­der­ing, recog­niz­ing that the prac­tice had grown far worse with tech­no­logy. At oral argu­ment, espe­cially in his sharp quer­ies in the Whit­ford case from Wiscon­sin, Kennedy made clear he under­stood the stakes. The stars at last aligned for a major ruling, one that would have been hailed by citizens of all polit­ical views.

Then, an epic judi­cial shrug. The justices sent three gerry­man­der­ing cases down to lower courts for adjust­ment based on stand­ing. The rulings might have offered a path for success, had Kennedy remained on the bench. Now, from his perspect­ive at least, they are a version of the famous New Yorker cartoon: “Tues­day’s out. How’s never­—­does never work for you?”

Now, we can expect one of history’s great nomin­a­tion battles. It may make Bork or Bran­deis or Carswell and Haynes­worth look like popgun wars. Elec­tions may turn on the debate. Kennedy’s record should remind us that—­tak­ing noth­ing away from other major issues of indi­vidual free­dom in the court’s hand­s—the state of our demo­cracy is at stake. On this, at least, I hope Kennedy’s successor does a better job than he did.

This passage is an excerpt from Politico Magazine. Read the full article here.  

Image: Flickr / McGeorge School of Law (some rights reserved)