Donald Trump is an accidental president. He lost the popular vote by nearly 3 million ballots. And he would be far more powerless if not for the fact that the United States Senate is an anti-democratic relic. The 49 senators in the Democratic caucus represent almost 40 million more people than the 51 in the Republican caucus.
And yet, thanks to Justice Anthony Kennedy’s decision to hand his seat on the Supreme Court to Trump, the illegitimate president will be one of the most consequential American leaders of the modern era. Roe v. Wade will soon be a memory. Anti-discrimination laws will become shriveled husks. The LGBTQ rights revolution will halt and, most likely, begin to march in reverse.
Judgeships could quite literally be up for sale. Religious conservatives will gain sweeping power to defy the law. Executions will flourish. And our best hope of ending partisan gerrymandering will come to a close.
The Court’s “swing” vote is now Chief Justice John Roberts — the man who authored a decision holding that America isn’t racist enough to justify a fully operational Voting Rights Act three years before Donald Trump was elected. Things are going to get bad. Fast.
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.
With Kennedy gone, that firewall ceases 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 will 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.
Last year, 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 fairly likely to prevail in this case. Now, their fate is likely to be much worse.
A religious right to defy anti-discrimination laws
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. More recently, Kennedy penned the Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which, while handing a narrow victory to an anti-gay baker, also reaffirmed that “it is a general rule that [religious] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”
Kennedy, in other words, largely rejected claims that a person’s religion gives them a right to violate anti-discrimination laws.
With Kennedy off the Court, it is likely that a majority of the Court will think differently. Three members of the Court either wrote or joined opinions that would give religious objectors a sweeping right to defy the law. Moreover, while Chief Justice John Roberts joined neither of these opinions, he’s largely been supportive of claims that religious objectors should enjoy broad immunity from the law.
With Kennedy gone, there will likely soon be a majority which believes that a religious objection gives someone a license to discriminate against LGBTQ people — and, potentially, to discriminate against women as well.
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.”
Fourteen years later, the Supreme Court punted on a pair of gerrymandering cases, leaving the issue live and Kennedy as the Court’s deciding vote. With him gone, any hope that the Supreme Court will end gerrymandering is likely to leave with him.
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 is now poised to fill second seat on the Supreme Court with a hardliner similar to Neil Gorsuch. And 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 political faction supported by a majority of Americans 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.
With Kennedy gone, 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.
This piece is adapted from an earlier ThinkProgress article on the possibility of a Kennedy retirement.