WASHINGTON DC — The clearest sign that a majority of the Court believes the anti-gay Defense of Marriage Act (DOMA) is unconstitutional is how tenaciously three of the most conservative justices fought to prevent the Supreme Court from ruling on its constitutionality in the first place. Chief Justice Roberts and Justices Scalia and Alito fought tooth and nail to dismiss the case on jurisdictional grounds — an effort that is likely, if not certain, to fail. Most of the left-of-center bloc appeared skeptical of the conservatives’ theory, and Justice Kennedy at one point stated that it “seems to me there’s injury here” sufficient to justify the Court hearing the case. Kennedy did make a pointed comparison between President Obama’s decision not to defend DOMA and President Bush’s infamous signing statements, but this is more likely a gratuitous swipe at the President, than a sign that Kennedy will ultimately vote to kill the case.

Should the Court reach the merits, Kennedy left little doubt that he would vote to strike down DOMA, but not on grounds that bear any resemblance to the Constitution. DOMA is unconstitutional because it violates the Constitution’s guarantee that all persons receive the “equal protection of the laws.” Kennedy, however, largely brushed over this fact to hone in on a states’ rights argument similar to one tea partiers have used to claim Medicare is unconstitutional. In Kennedy’s words, DOMA is problematic because it runs “in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”

This is not an accurate description of what DOMA does. The primary effect of DOMA is not to “regulate marriage” it is to define who does who does not receive certain federal benefits — benefits such as tax exemptions, Social Security benefits for spouses and veterans benefits. The overwhelming majority of these benefits were enacted through Congress’ power under the Constitution to tax and spend money, a power which necessarily includes the authority to decide who is taxed and who receives federal spending. Kennedy, however, seems to think that Congress cannot define the scope of federal benefits in ways that may also touch upon marriage. There is no basis for this in the Constitution’s text.

There is, however, a limited basis for Kennedy’s views in the Constitution’s history. In the earliest days of the Republic, James Madison proposed a narrow, extra-textual view of the Constitution that would have limited Congress’ power to tax and spend money to subjects specifically mentioned elsewhere in the document. Alexander Hamilton, by contrast, argued that the we have to follow the words of the Constitution we have — not limits that cannot be found in the Constitution’s text. Hamilton won, and a unanimous Supreme Court agreed with him many years later.

If Madison had won, we likely could not have Medicare, because the Constitution does not specifically mention health care. We likely could not have Social Security, because it does not mention retirement. Medicaid, food stamps, and, indeed, virtually all of the modern American safety net would probably be on the chopping block. Kennedy’s suggestion, that judges can write a “marriage” exemption into the Constitution that doesn’t exist may be the closest that any justice has ever come to embracing Madison’s rejected theory — and it would be truly dangerous if five justices ever signed on to it.
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Beginning this morning, the Supreme Court will hear two cases that could recognize the right of everyone, straight or gay, to marry the person they love. The first concerns California’s anti-gay Proposition 8, and could potentially extend the right to marry to same-sex couples in all fifty states. The second challenges the federal Defense of Marriage Act (DOMA), and could end the federal government’s practice of denying equal benefits to couples who are legally married under state law. Here is everything you need to know to understand these cases:

How The Court Could Rule

– A Broad Decision: The best, and most obvious, decision would be for the justices to follow the Constitution and the clear command of precedent and extend marriage equality to all fifty states. It is fairly likely, however, that at least one member of the majority will be too cautious to require Alabama to follow the Constitution, even if they are prepared to order California to do so. If the justices punt on the Alabama question, the important question is whether they hold that anti-gay laws are subject to “heightened scrutiny,” a skeptical kind of constitutional analysis that will make it very difficult for anti-gay discrimination to withstand court review in the future.

— A One-Off: The Ninth Circuit proposed a way to strike down Prop 8 while leaving most other states free to engage in marriage discrimination (the court said that voters were not permitted to withdraw the right to marry once it had been established by the state Supreme Court). The logic of the ruling was thus confined to California. Similarly, two of the Court’s most important gay rights opinions relied on very narrow reasoning that advanced equality only incrementally. It is possible the justices will repeat this performance.

– Jurisdictional Dodges: In both cases, the Court could potentially rule that it lacks jurisdiction to hear the case, a decision that would cast a cloud of uncertainty over the rights of gay couples.

– A Stealth Attack: Several prominent conservatives are pushing a dangerous legal theory that would strike down DOMA on states’ rights grounds, and potentially endanger Social Security, veterans benefits and progressive taxation in the process.

– A Loss: Ultimately, however, it is important to remember that this is a severely conservative Court, and even so-called swing vote Justice Kennedy is a severely conservative justice. Equality could lose.

What To Expect From The Justices

– The Democratic Appointees: It would be very surprising if any of the Court’s four Democrats vote to uphold discrimination. While some commentators have noted Justice Ginsburg’s critical statements about Roe v. Wade — “It’s not that the judgment was wrong, but it moved too far, too fast” — this statement suggests Ginsburg might take an incremental approach, not that she will vote to uphold discrimination. Chance of pro-equality vote: more than 90 percent.

– Justice Kennedy: Kennedy is the author of two narrowly reasoned, but very important cases upholding gay rights. His record on gay rights is not perfect, however. Kennedy cast the key vote holding that the Boy Scouts have a constitutional right to engage in anti-gay discrimination, and he’s behaved less and less like a moderate swing vote and more and more like a hardline conservative in recent years. His vote for equality is likely, but not certain, and is more likely than not to rest on very narrow reasoning. Chance of pro-equality vote: 60-70 percent.

– Justice Thomas: Thomas is the Court’s most conservative member, but he once called Texas’ “sodomy” ban an “uncommonly silly” law, and he cares a great deal shrinking federal power until it is small enough to be drowned in a bathtub. Indeed, Thomas believes federal child labor laws and the nationwide ban on whites-only lunch counters are unconstitutional on states’ rights grounds. For this reason, it is possible he will be attracted to the claim that DOMA violates states’ rights. There’s no chance he’ll vote to strike Prop 8, however. Chance of pro-equality vote: 20 percent on DOMA, 0 percent on Prop 8.

– Chief Justice Roberts: Roberts has a lesbian cousin who will attend the marriage arguments as his personal guest, and he once did pro bono work on behalf of gay rights activists when he was an attorney in private practice. Nevertheless, Roberts remains very conservative and has a long record of criticizing decisions that read the Constitution’s promise of equality broadly. If Roberts does vote with a pro-equality majority, it is just as likely that he will do so in order to wrest control of the opinion and narrow it as he would to extend the blessings of liberty to gay Americans. Chance of pro-equality vote: 10 percent.

– Justice Alito: Alito is probably the toughest conservative questioner on the Court, and he has emerged as a strong advocate for whatever outcome conservatives prefer. Chance of pro-equality vote: less than one percent.

– Justice Scalia: In past opinions, Scalia compared homosexuality to murder, drug addiction, bestiality, incest and child pornography. Chance of pro-equality vote: 0 percent. Chance his opinion will accuse pro-equality justices of kowtowing to the “homosexual agenda”: 99.99 percent.

Surging Support For Marriage Equality

– Marriage Equality Has Strong Bipartisan Support: Retired Judge Vaughn Walker, the first judge to strike down Prop 8, is a Republican appointed to the bench by President George H.W. Bush. Three of the court of appeals judges that voted to declare DOMA unconstitutional are Republicans. 131 top Republicans, including six former Republican governors, filed a brief supporting marriage equality.

– The American People Support Marriage Equality: Fifty-eight percent of Americans believe same-sex couples should be allowed to marry. Among adults under 30, support is at 81 percent.

The Constitution guarantees “the equal protection of the laws” — and that includes same-sex couples. As the Supreme Court has explained, this guarantee is most robust when applied to groups that experienced a “‘history of purposeful unequal treatment‘ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.” LGBT Americans undoubtedly fit this description, and thus neither DOMA nor Prop 8 can stand.

Justice Anthony Kennedy doesn’t like law. Or, at least, he doesn’t like for people that aren’t him to engage in lawmaking. Kennedy did not simply vote to toss out nearly two-hundred years of established law in order to strike down part of the Affordable Care Act, he wanted to toss out the entirety of Obamacare. He was the driving force behind Citizens United. He’s given sweeping legal immunity to corporations. A 2005 study found that Kennedy was the second most likely justice to strike down acts of Congress — second only to the guy who thinks federal child labor laws are unconstitutional.

So Kennedy is very quick on the draw when he has the opportunity to shape American law more to his liking, an instinct on his part that has generally served America very badly. One rare instance where Kennedy’s has actually been a force of good, however, is gay rights. Kennedy authored two landmark decisions in this space, and is viewed as the most likely fifth vote to strike down the anti-gay Defense of Marriage Act.

Which is why it is a bit concerning to see Kennedy suddenly claiming that he believes in judicial restraint while he is no doubt in the process of reviewing briefs in the marriage equality cases:

U.S. Supreme Court Justice Anthony Kennedy said Wednesday that congressional lawmakers need to maintain the nation’s balance of power by being able to compromise, expressing concerns that the high court is increasingly the venue for deciding politically charged issues such as gay marriage, health care and immigration.

Kennedy, a former Sacramento law school professor, was asked by reporters whether he thought the court was deciding too many issues that can be decided by Congress.

“I think it’s a serious problem. A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say,” Kennedy said. “And I think it’s of tremendous importance for our political system to show the rest of the world — and we have to show ourselves first — that democracy works because we can reach agreement on a principle basis.”

Now, let’s be clear. If Kennedy has now decided that he cares about judicial restraint, than that could be a very good thing. Kennedy’s opinion in Citizens United did terrible damage to our democracy, as did the deciding vote he cast to install George W. Bush in the White House. He expanded abusive companies’ ability to exploit their consumers through forced arbitration and similar practices. He stole away Lilly Ledbetter’s right to equal pay for equal work. And, of course, the pending challenge to the Voting Rights Act presents him with a fantastic opportunity to show that he is now committed to restraint — an opportunity he did not seem likely to seize during oral arguments.

But his recent claim to care about judicial restraint is, at best, entirely inconsistent with his record on the Court. At worst, it is a warning that he’s suddenly decided to restrain himself now that he has a rare opportunity to do good in the world in the marriage equality cases.

WASHINGTON, DC — The Voting Rights Act did not have a very good day today. Chief Justice John Roberts suggested that a key provision of the law is rooted in the idea that “citizens in the South are more racist than citizens in the North.” Justice Antonin Scalia accomplished the unusual task of making Roberts look like a moderate by labeling the law a “perpetuation of racial entitlement.” Justice Anthony Kennedy, whose undeserved reputation as a moderate leads Court-watchers to pay particularly close attention to his questions, compared a landmark voting rights provision to the Marshall Plan as an example of a good idea that has now run its course.

Nothing, of course, is certain after an oral argument. Arguments in the Affordable Care Act case did not go well for the law or the Constitution, but Roberts ultimately blinked and voted to uphold the lion’s share of the law. When the same provision of the Voting Right Act — the provision requiring some parts of the country to “pre-clear” new voting laws with the Justice Department or a federal court before they take effect — was before the justices four years ago, that argument did not go very well either. Yet the justices ultimately upheld the law, albeit under circumstances suggesting another shoe would drop soon.

Though the shoe seems likely to drop this term, the four Democratic appointees made it clear they would not allow it to fall lightly. Justice Sonia Sotomayor was a star today, demonstrating a masterful understanding of the record and of the history of voter suppression in the South. When Scalia uttered his offensive claim that the law is a racial entitlement program, Sotomayor placed the lawyer challenging voting rights in the uncomfortable position of having to explain whether he agreed or disagreed with Scalia. With an assist from Justice Elena Kagan, Sotomayor pointed out that the plaintiff in this case, Shelby County, Alabama, “may be the wrong party bringing this” because of their dismal past record on voting rights. Alabama as a whole ranks as one of the worst offenders of federal voting rights laws in the country, and thus, as Kagan pointed out, should be subject to additional review of its voting laws “under any formula that Congress could devise.”

Sotomayor also asked the best question of the morning: why should Shelby County be allowed to bring this lawsuit as what is known as a “facial challenge,” instead of a much more limited “as-applied” challenge. A facial challenge is a broad lawsuit claiming that a law must utterly cease to exist and can never be applied to anyone. As Sotomayor pointed out, they are also disfavored under current law (or, a least, that Supreme Court likes to say they are disfavored). Generally, the Supreme Court claims to prefer narrower “as-applied” challenges that claim a law is invalid with respect to a specific plaintiff, but that it may still lawfully be applied to many other parties.

When individual voters bring lawsuits claiming disenfranchisement, the Roberts Court has wielded this distinction between facial and as-applied challenges to devastating effect. Most significantly, in Crawford v. Marion County Election Board, a plurality of the Court established that challenges to voter ID, a common voter suppression law, can only be brought on an as-applied basis. The upside of this is that each voter who feels they may be disenfranchised by the law has to hire a lawyer, go to court, and sue for the right to vote. And if they win, their victory applies only to them, not to the potentially hundreds of thousands of other voters who could be disenfranchised by voter ID.

What’s good for the goose should be good for the gander. If a voter disenfranchisement scheme that is popular with conservatives can only be subject to narrow, plaintiff-specific challenges, than the same rule should apply when a landmark voting rights law is challenged by conservatives. There was little doubt after oral argument today, however, that at least four of the Court’s conservatives do not see it that way.

The thin ray of hope is Justice Kennedy. Although Kennedy’s comments were largely hostile to the law, he did at one point join into the more progressive justices’ questions about whether Shelby County can try to destroy this law entirely — “if you would be covered under any formula, why are you injured under this one?” Kennedy asked the lawyer for Shelby County at one point. Suggesting either that he could ultimately agree with Sotomayor, or at least that he does not think that Shelby County is the right plaintiff to bring this case.

Nevertheless, if Kennedy does not agree with Sotomayor — or at least to put off the fate of the law until a future date — it will mean that there is one rule that applies to individual voters, and another, more favorable rule that applies to people who oppose voting rights.

Republican Supreme Court Justice Anthony Kennedy spoke at the Ninth Circuit Judicial Conference on Monday, where he expressed concerns similar to those expressed by Chief Justice John Roberts last year about the growing vacancy crisis on the federal bench:

The Senate is a political entity and will act in a political way and that’s quite proper. When you’re appointed to a lifetime position, it’s proper for the political branch of the government to have considerable authority over that decision. On the other hand, there is a difference in a political function and a partisan function, and the current climate is one in which highly qualified eminent practitioners of the law simply do not want to subject themselves to this process. And I think its incumbent upon members of this conference, particularly the members of the bar to face the fact that they have the responsibility to ensure that this appointment, selection, and confirmation progress is done without the partisan intensity that now accompanies it. This is bad for the legal system. It makes the judiciary look politicized when it is not, and it has to stop.

Kennedy is right about the confirmation process. And while the judge wars certainly did not start when President Obama moved into the White House, they’ve escalated substantially under Senate Minority Leader Mitch McConnell (R-KY). Under McConnell’s leadership, Senate Republicans routinely filibustered Obama’s trial court nominations, the first time such relatively low-ranking judges have ever been the subject of this kind of obstructionism. And McConnell completely misrepresented Senate precedents in order to justify shutting down every single one of Obama’s court of appeals nominees starting last June.

Justice Kennedy would be a much more credible messenger against infecting the judiciary with partisanship, however, if he hadn’t recently joined a legally indefensible dissent in the most politically charged case in decades — voting to wipe out the entirety of President Obama’s Affordable Care Act in the midst of a presidential election. And he would have even more credibility if he hadn’t been the driving force behind the Supreme Court’s election-buying decision in Citizens United.

CBS News’ Jan Crawford confirms widespread rumors that Chief Justice John Roberts initially voted to strike down the Affordable Care Act’s individual mandate, but decided midway through the opinion drafting process that he could not support this constitutionally unjustifiable result. In what may be the biggest revelation of her piece, Crawford also reports that pseudo-moderate Justice Anthony Kennedy led the internal lobbying effort to bring Roberts back into the right-wing fold:

Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy – believed by many conservatives to be the justice most likely to defect and vote for the law – led the effort to try to bring Roberts back to the fold.

“He was relentless,” one source said of Kennedy’s efforts. “He was very engaged in this.”

But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, “You’re on your own.”

The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress’ power under the Commerce Clause, the sources said.

Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts’ decision, the sources said, as if they were no longer even willing to engage with him in debate.

Crawford cites two unnamed sources, and there are a very limited universe of people who could have revealed this information to her. Only the justices and their personal staff would have access to this knowledge, and it is highly unlikely that a clerk or secretary would be willing to risk their entire career by revealing the Court’s confidential deliberations to the press. Crawford, moreover, is a very well connected conservative reporter who has, at times, worked closely with the Federalist Society to drive conservative legal narratives. Nothing is certain, but it is likely that one or both of Crawford’s sources is a conservative justice.

Moreover, as Linda Greenhouse points out, it is possible that the Court started springing leaks more than a month before Roberts handed down his opinion:

Around Memorial Day, a number of conservative columnists and bloggers suddenly began accusing the “liberal media” of putting “the squeeze to Justice Roberts,” as George Will expressed the thought in his Washington Post column. “They are waging an embarrassingly obvious campaign, hoping he will buckle beneath the pressure of their disapproval and declare Obamacare constitutional,” Mr. Will wrote. Although the court has been famously leakproof, Mr. Will and some of the others are well connected at the court, and I wondered at the time whether they had picked up signals that the chief justice, thought reliable after the oral argument two months earlier, was now wavering, and whether their message was really intended for him.

To be clear, at this point only two facts are confirmed: 1) According to Crawford, Roberts flipped his vote midstream; and 2) someone within the Court must have leaked her this information. It is perfectly appropriate for Justice Kennedy, or any other justice, for that matter, to internally lobby Roberts to try to obtain his vote in an important case. If a member of the Court has turned to conservative columnists like Will or reporters like Crawford in order to pressure and then embarrass Roberts, however, that would be a significant and unusual escalation from the justices’ regular tactics.

Yesterday was a day for celebration because when millions of Americans learn that their lives are no longer endangered by a renegade Supreme Court, everything else is details. Nevertheless, it is important to be aware of just how close the country came to the brink of disaster yesterday. Four justices, including so-called moderate conservative Anthony Kennedy, joined a dissent that did not simply toss out two-hundred years of established law, it also called for the entire law to be repealed.

This too was a massive departure from longstanding law. A court may not invalidate any constitutional part of a law unless it is “evident” that Congress would have preferred that part to fall along with the parts the court just invalidated, yet Kennedy and his three co-ideologues would simply cast that rule aside in order to achieve the Republican Party’s number one policy goal.

And the Kennedy Four do not stop there. As part of a lengthy conclusion warning that enabling democratically elected lawmakers to actual govern places “liberty at peril,” the dissenters write what may be the least self-aware paragraph ever composed by a Supreme Court justice:

The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.

Caution and minimalism are indeed important values for a judge to possess. But tossing out an entire landmark statute because you object to a few lines is the opposite of minimalism, and taking such a maximalist approach without even pausing to consider the consequences is the opposite of caution.

Had just one more justice joined the Kennedy Four’s opinion, Medicare would have likely shut down. Approximately 100 million Medicare claims are processed each month using a formula that was altered by the Affordable Care Act. If the entire law were tossed, new rates could not be calculated under the old, pre-ACA formula until after a rulemaking process that can take months to complete. The result would be that Medicare would not be able to pay doctors for what could be many months, and because Medicare’s computers are not equipped to handle this kind of backlog, Medicare’s systems would likely crash.

This, by the way, is just one of the many consequences that would have likely occurred immediately if Justice Kennedy had prevailed yesterday. Four justices — almost a majority of the Supreme Court — announced yesterday that they would happily blow up our entire health care system simply to lash out at President Obama’s signature accomplishment, forcing millions of Americans to face uncertainty, financial ruin or potentially even death after they suddenly lose their ability to access affordable health care.

Nor is this kind of behavior out of character for Justice Kennedy. Kennedy was the driving force behind Citizens United, even after Roberts initially advocated a less radical approach. Kennedy is a zealous supporter of forced arbitration decisions enabling corporations to force people into a corporate-run court system. He cast the key vote against Lilly Ledbetter and against equal pay for women in the workplace. And, of course, he voted to install George W. Bush as president.

To be clear, Kennedy is not Clarence Thomas. He proved that in Monday’s immigration decision. But the health care dissent shows he is no less willing to take America to the edge of an abyss than the Court’s most radical members. If five colleagues had not been their to stop him, he would have pushed us in.

Over at the New Yorker, Jeffrey Toobin has a lengthy and excellent piece recounting the history the Supreme Court’s election-buying decision in Citizens United. Toobin frames the piece at the tale of conservative Chief Justice John Roberts’ strategic triumph over more than a hundred years of regulation limiting big money’s influence on politics. Nevertheless, the most important revelation in Toobin’s piece is the central role the Supreme Court’s so-called moderate swing vote played in dismantling meaningful limits on wealthy interest groups’ influence on elections:

According to the briefs in the case—and Olson’s argument—the main issue was whether the McCain-Feingold law applied to a documentary, presented on video on demand, by a nonprofit corporation. The liberals lost that argument: the vote at the conference was that the law did not apply to Citizens United, which was free to advertise and run its documentary as it saw fit. The liberals expected that Roberts’s opinion would say this much and no more.

At first, Roberts did write an opinion roughly along those lines, and Kennedy wrote a concurrence which said the Court should have gone much further. Kennedy’s opinion said the Court should declare McCain-Feingold’s restrictions unconstitutional, overturn an earlier Supreme Court decision from 1990, and gut long-standing prohibitions on corporate giving. But after the Roberts and Kennedy drafts circulated, the conservative Justices began rallying to Kennedy’s more expansive resolution of the case. In light of this, Roberts withdrew his own opinion and let Kennedy write for the majority. Kennedy then turned his concurrence into an opinion for the Court.

The new majority opinion transformed Citizens United into a vehicle for rewriting decades of constitutional law in a case where the lawyer had not even raised those issues.

As ThinkProgress previously explained, Kennedy is widely viewed as a moderate conservative, but this perception is inaccurate. Although Kennedy does sometimes deviate from conservative orthodoxy on social or on criminal justice issues, he is a hard line conservative on economic justice. Kennedy is a zealous supporter of forced arbitration, a practice that allows corporations to force their workers and consumers into a privatized arbitration system that overwhelmingly favors corporate parties. He cast the key vote against Lilly Ledbetter and against equal pay for many women in the workplace. He cast the key fifth vote empowering corporations to immunize themselves from consumer class actions. And, of course, he also voted to install install George W. Bush as president.

In the lead up to last week’s health care arguments, most eyes turned to Justice Anthony Kennedy as the vote most likely to cross party lines in order to follow the Constitution and uphold the Affordable Care Act. And it is certainly true that Kennedy’s record is somewhat less conservative than his fellow partisans on the Supreme Court. According to a 2008 study, the other four conservative justices are among the five most conservative in modern American history — Kennedy, by contrast, is ranked tenth.

Kennedy’s apostasies, however, are not distributed evenly across all areas of the law. On the death penalty, for example, Kennedy cast a number of votes that cheer progressives — declaring that juveniles and the mentally retarded cannot be executed and that, for the most part, the state cannot kill people for non-homicide crimes. Kennedy also has a strong record on gay rights, and he even departs from his fellow conservatives on abortion. Although Kennedy has consistently voted to restrict abortion rights, he turned aside a direct assault on Roe v. Wade early in his career on the Supreme Court.

Once Kennedy departs from areas such as criminal justice or gay rights, however, his record turns hard right. Although there is no perfect metric for how often a justice sides with entrenched wealth and power before the 99 Percent, the progressive Constitutional Accountability Center recently examined how often each justice votes with the nation’s top corporate interest group — the United States Chamber of Commerce. By this metric, Kennedy is only slighly less pro-corporate than his fellow partisans:

Notably, Kennedy joined the Court’s most conservative members in many of their most lavish gifts to the already wealthy and powerful:

• Citizens United: Probably Kennedy’s most significant opinion on the Court is his “rejection of the common sense of the American people” in Citizens United — which unleashed unlimited corporate and big money donations into American democracy.
• Forced Arbitration: Kennedy is a zealous supporter of forced arbitration, a practice that allows corporations to force their workers and consumers into a privatized arbitration system that overwhelmingly favors corporate parties.
• Job Insecurity: Kennedy cast the key vote against Lilly Ledbetter and against equal pay for women in the workplace. Even after this decision became a national embarrassment that was eventually overruled by Congress, Kennedy again cast a similar vote against equal opportunities for older workers.
• Every Man For Himself: Kennedy cast the key fifth vote empowering corporations to immunize themselves from consumer class actions, a decision that effectively gives corporate America a license to cheat its customers a few dollars at a time.
• The Entire George W. Bush Presidency: Lest we ever forget, Kennedy also voted to install George W. Bush as president, quite possibly the single greatest gift any judge has ever given to the wealthiest and most powerful Americans.

None of this, of course, means that Kennedy is certain to vote to strike down President Obama’s signature health care bill. It would be impossible for Kennedy to square such a vote with the decision he joined in Gonzales v. Raich, and the case against the Affordable Care Act is so weak that it is laughable. Nevertheless, the fact remains that Kennedy has shown no inclination towards moderation when basic economic justice is on the table. He has, almost as consistently as Chief Justice Roberts or Justice Scalia, behaved as a creature of the one percent.