This past weekend, as most Americans were preparing for cookouts and fireworks, NPR’s Nina Totenberg dropped a bombshell. Justice Anthony Kennedy, the closest thing the Supreme Court has to a swing vote, has told young lawyers seeking clerkships in his chambers that “he is considering retirement.”
If Kennedy does retire, that decision presents an existential threat to many civil rights that seemed safely entrenched before Donald Trump’s second-place victory in last November’s election.
Four years from now, Trump may be remembered as both a political accident and the man who inspired a broad coalition of voters to cast his unique brand of racist incompetence out of office. He owes his job to a constitutional relic that allows the loser of a presidential election to nonetheless take office, and Trump has thus far struggled to advance a legislative agenda through Congress.
And yet, if Kennedy does retire, Trump will be an extraordinarily consequential president.
Kennedy is a conservative. But on a number of issues — such as abortion, race, LGBT rights, criminal justice, and gerrymandering — he was a relative moderate compared to his fellow Republicans on the Supreme Court. If Trump nominates someone to replace Kennedy who’s more similar to Neil Gorsuch, the hardline conservative Trump picked for the seat that Senate Republicans held open until Trump could fill it, the law will move drastically to the right on many crucial issues.
Roe v. Wade
Justice Kennedy is not a fan of abortion rights. He voted to strike down only one of the first 21 abortion restrictions that he considered on the Supreme Court, though he recently added another one to this list in Whole Woman’s Health v. Hellerstedt.
Yet his two votes in favor of reproductive choice both shared something in common. Planned Parenthood v. Casey was an explicit invitation to overrule Roe v. Wade — an invitation that Kennedy declined, even though he used Casey as a vehicle to weaken the right to choose. And Whole Woman’s Health was an attempt to effectively denude Roe of any force by giving states broad leeway to impose restrictions on abortion.
Kennedy, in other words, was the Supreme Court’s firewall against a decision overruling Roe altogether. He was content to water down the right to choose, but not to eliminate it outright.
If he leaves, that firewall will cease to exist.
Racial justice is another area where Kennedy was no liberal hero. Kennedy voted to strike down public school desegregation plans in Louisville and Seattle. And he spent much of his career complaining about affirmative action. Although Kennedy voted in 2016 to spare a fairly modest affirmative action program in Texas, he did so in a way that is likely to make it very difficult (and, potentially, very expensive) for public universities to maintain such programs.
Nevertheless, Kennedy is a relative moderate on issues of race compared to Chief Justice John Roberts, who is likely to dominate the Court’s approach to race cases if Trump replaces Kennedy with someone similar to Gorsuch.
In 2015, for example, Kennedy surprised nearly everyone who was following the case when he voted with the Court’s liberal bloc to preserve the federal Fair Housing Act against an effort to drastically weaken this landmark anti-discrimination law. Roberts would have crippled the law despite the fact that every single federal appeals court to consider the question disagreed with his approach.
Similarly, while Kennedy is hardly a hero for voting rights supporters, he’s been more willing to combat racial gerrymanders than Roberts or the other Republicans on the Supreme Court.
With Roberts in the driver’s seat, the Court’s approach to race would become the jurisprudential equivalent of #AllLivesMatter — not necessarily white supremacist, but broadly skeptical of meaningful efforts to combat racism.
Kennedy authored nearly every single one of the Supreme Court’s major decisions advancing gay rights, including Lawrence v. Texas, which held that states may not criminalize consensual sex acts between adults, and Obergefell v. Hodges, the landmark marriage equality decision. With Kennedy gone, there is no longer a majority that agrees with the outcome in either case.
That said, it’s an open question whether Roberts will vote to outright overrule these decisions — a highly visible act which would paint his Court as a political entity — or simply work to undermine civil rights by granting new and expansive rights to people who harbor anti-LGBTQ views. In either event, the Supreme Court’s progress towards a freer, more inclusive society for LGBTQ Americans likely halts with Kennedy’s retirement.
In April, for example, a federal appeals court held that discrimination on the basis of sexual orientation is a form of illegal gender discrimination, placing this case on the fast track to the Supreme Court. With Kennedy still on the bench, gay and bisexual workers were likely to prevail in this case. Now, their fate is likely to be much worse.
A religious right to defy anti-discrimination laws
Similarly, in Christian Legal Society v. Martinez, Kennedy joined the Court’s liberals to hold that an anti-LGBTQ religious group does not have a special right to discriminate and still receive government subsidies. Although Martinez was primarily a free speech case, it concerns the same cultural battle as a more recent series of lawsuits claiming that anti-LGBTQ businesses can ignore anti-discrimination laws so long as they claim a religious justification for doing so — a battle the Court recently announced that it would wade into.
If Kennedy leaves, the Court is likely to rule that religion is a license to discriminate.
Kennedy’s views on partisan gerrymandering are, if more than a little frustrating to voting rights advocates, also much more nuanced than the views held by many of his fellow Republican justices. In 2004’s Vieth v. Jubelirer, the Court refused, in a 5–4 vote, to even let federal courts consider a challenge to Pennsylvania’s congressional maps. Four justices signed onto an opinion by Justice Antonin Scalia that would have effectively shut down suits against partisan gerrymanders permanently.
Justice Kennedy, however, wrote a separate opinion leaving the door cracked for a future suit. Though Kennedy worried that litigants had yet to come up with a workable way for judges to determine which maps are partisan gerrymanders and which aren’t, he also wrote that “if workable standards do emerge to measure these burdens . . . courts should be prepared to order relief.”
A dozen years later, a panel of three federal judges struck down Wisconsin’s state assembly maps in Whitford v. Gill. Unlike in previous partisan gerrymandering cases, the plaintiffs in Whitford developed a mathematical formula that will allow courts to objectively determine which maps are gerrymandered.
Whitford in other words, speaks directly the concern Kennedy raised in Vieth, and many Court-watchers were optimistic that Kennedy would cast a vote to end partisan gerrymandering. With Kennedy off the Court, Whitford is instead likely to cement a majority party’s ability to entrench its own power.
Kennedy also provided the key fifth vote in Arizona State Legislature v. Arizona Independent Redistricting Commission to uphold a ballot initiative creating a commission to draw Arizona’s legislative maps. Without Kennedy, anti-gerrymandering initiatives such as this one could also fall.
Justice Kennedy is also a relative moderate on the death penalty. Though Kennedy joined a fairly brutal decision in Glossip v. Gross, which enabled death row inmates to be executed in extraordinarily painful ways, he also voted to forbid executions of juvenile offenders, the intellectually disabled, and of nearly anyone who did not commit a homicide crime.
When Kennedy is gone, the Court’s new majority is likely to usher in a new renaissance for state-sponsored killings, and potentially to roll back the limits Kennedy helped put in place.
Judges for sale
Justice Kennedy is, for the most part, a hardline conservative on campaign finance issues. Among other things, he authored the Court’s decision in Citizens United v. FEC, which permitted unlimited corporate spending on elections.
Yet Kennedy also recognized that, at least in one particularly egregious case, there may be limits on a wealthy individuals’ power to shape an election.
In Caperton v. AT Massey Coal, a jury awarded a $50 million verdict against a coal company. The company’s CEO then spent about $3 million to help elect his preferred candidate to the state Supreme Court. That candidate won the election and later provided the key vote to toss out the jury verdict.
Kennedy wrote in Caperton that, in the extraordinary circumstances presented by this case, the judge who benefited from the $3 million in campaign spending should have recused himself.
Caperton, however, was a 5–4 decision. With Kennedy gone, there will no longer be a majority for the proposition that judges are not for sale.
Confidence in the Court
Beyond individual cases, Kennedy’s retirement potentially threatens the political viability of the judiciary itself. Courts are unusual creatures. They have no popular mandate and, at least in the federal judiciary, no real accountability to the people. In Alexander Hamilton’s words, they have “no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.”
Yet we obey judicial decisions. We do so in no small part because we recognize that we all have a stake in the judiciary. If we do not obey the decision we hate today, we will have no recourse when we need others to obey a decision we love tomorrow.
But this delicate balance depends on everyone continuing to have a stake in the judiciary. It also depends upon us all believing that the men and women who lead the judiciary were appointed in a fair process.
And yet, a president who lost by nearly 3 million votes could fill a second seat on the Supreme Court with a hardliner similar to Neil Gorsuch. If Kennedy retires, moreover, Trump’s second nominee is likely to be confirmed by a bloc of senators who, due to Senate malapportionment, represent less than half of the nation.
If that happens, we will have the most conservative Supreme Court since the early days of the Roosevelt administration. The Court will run roughshod over rights that millions of Americans take for granted. It will grow even more political. Women, people of color, gender and sexual minorities will wait each June to discover how the Court will push them deeper into the margins of society.
And liberals will increasingly come to think that the federal judiciary is exclusively a source of sorrow.
The last time a majority political faction decided that the judiciary had become so captured by their ideological opponents that they no longer had a stake in it, President Franklin Roosevelt threatened to pack the Court with 6 new justices in order to neutralize it.
Should Kennedy retire, the Court’s new majority risks a similar showdown if they use the power they owe to an accidental president to entrench a partisan agenda.