On Economic Justice, Justice Kennedy Is No Moderate

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.