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Ten Reasons No One Should Lionize Justice Kennedy

By Ian Millhiser  

"Ten Reasons No One Should Lionize Justice Kennedy"

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Justice Anthony Kennedy (Credit: AP)

Wednesday morning, Justice Anthony Kennedy joined his four more liberal colleagues to strike down the unconstitutional Defense of Marriage Act — thus continuing his solid, if not entirely unbroken, pro-gay record on the Supreme Court. Gay rights, however, is one of just a few areas where Kennedy does not behave like a loyal conservative. Here are ten examples of how Kennedy normally votes as a member of the Supreme Court:

1. Citizens United

Kennedy didn’t just author the Court’s decision in Citizens United v. FEC, which permitted unlimited corporate spending on elections, he was the driving force behind an effort to push the Court further to the right on this issue. Initially, Chief Justice John Roberts authored an opinion that would have decided the case on a much narrower grounds. Kennedy, however, wrested control of the case and convinced his conservative brethren to embrace the far more sweeping decision the Court eventually handed down.

2. Voter Suppression

Just one day before striking DOMA, Kennedy joined a 5-4 opinion neutering a key provision of the Voting Rights Act. As a result, voter suppression laws such as voter ID, racially-gerrymandered legislative maps and other efforts to reduce minority voters’ impact at the polls will now be allowed to take effect in states previously covered by the act’s “preclearance” rules. Kennedy also joined the court’s judgment in Crawford v. Marrion County Election Board, which effectively allowed voter ID to flourish in conservative states.

3. Health Care

Kennedy didn’t just support an attack on the Affordable Care Act that, in the words of a leading conservative judge, had no basis “in either the text of the Constitution or Supreme Court precedent,” he voted to strike the entire law. Had Kennedy’s outcome prevailed, it would have led to chaos in the American health care system. Among other things, Medicare would have likely been unable to pay doctors for several months.

4. Patronizing Women

Kennedy authored the Court’s decision in Gonzales v. Carhart, which reasoned that women’s right to choice an abortion should be limited because “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”

5. Forced Arbitration

Kennedy is a staunch supporter of forced arbitration, a practice that enables businesses to shunt their workers and consumers out of real courts and into a corporate-run arbitration system where the corporate party often selects arbitrators with a record of siding with corporate interests. Indeed, Kennedy authored the Court’s decision in Circuit City v. Adams, which allows employers to effectively force arbitration upon their employees, despite the fact that federal arbitration law explicitly exempts “workers engaged in foreign or interstate commerce.”

6. Every Man For Himself

Similarly, Kennedy joined a pair of decisions interpreting federal arbitration law to enable companies to immunize themselves from class action lawsuits, despite the fact that the federal law at issue says nothing about class actions. Class actions, which allow multiple people with a common claim to band together under one lawsuit, are an essential mechanism to insure that plaintiffs with small-dollar injuries are able to vindicate their rights. It is rarely cost effective to sue to recover $30, for example, unless a class action is available.

7. No Equal Pay For Women

Justice Kennedy cast the key fifth vote against Lilly Ledbetter, cutting off her claim for equal pay for equal work. This decision was ultimately overruled by the Lilly Ledbetter Fair Pay Act, the first bill President Obama signed into law.

8. Workplace Harassment

On Monday, Kennedy cast the key fifth vote for a decision narrowly defining who qualifies as a “supervisor” for purposes of sexual and racial harassment law, a decision that will render many victims of such harassment unable to prevail in court. Under the opinion Kennedy joined, a senior worker who directs a more junior employee’s day to day work is nonetheless not a “supervisor” unless they have the power to fire, demote or otherwise work a “significant change” in the junior employee’s employment status.

9. Workplace Discrimination

The same day that Kennedy helped weaken legal protections against workplace harassment, he also made it far more difficult for workers who face retaliation after they allege discrimination to hold their employer accountable for such retaliation. This decision built upon another opinion Kennedy joined which made it easier for employers to get away with age discrimination.

10. George W. Bush

Finally, Kennedy cast the key fifth vote in Bush v. Gore, effectively throwing the presidency to the man who presided over the Iraq War and the near collapse of the American economy.

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