How Trump's Supreme Court Pick Could Undo Kennedy's Legacy
Upon Justice Kennedy's retirement, the President is unlikely to nominate a moderate. What rulings would a brazen conservative majority produce?
There is no mystery about Supreme Court Justice Anthony Kennedy's favorite word. It is "dignity," which he invoked repeatedly in his opinions. The word appears three times in his 2003 decision in Lawrence v. Texas, which established the principle that gay people could not be thrown in jail for having consensual sex. He mentions it nine times in his most famous opinion, Obergefell v. Hodges, from 2015, which guaranteed the right to same-sex marriage in all fifty states. Lawyers, hoping to appeal to the Court's swing vote, sprinkled their briefs and arguments with "dignity," even as critics on both the left and the right found Kennedy's infatuation with the word (which does not appear in the Constitution) maddening, because it was never quite clear what he meant by it. Still, the word seemed fitting for the man—a tall, sombre Californian who appeared ever aware of the burdens imposed by his station.
So there is some irony in Kennedy's decision, last week, to turn over his precious seat on the Supreme Court to the least dignified man ever to serve as President. Though Donald Trump was a frequent litigant when he was in the private sector, he displayed no discernible views on the judiciary. But, once he became a Republican candidate for President, he fully embraced the contemporary conservative dogma regarding the courts. He recognized that evangelicals and their political allies would overlook his vulgar demeanor if he pledged to give them the judges they wanted—and he has, and he will.
Kennedy is no liberal. He provided the fifth vote to deliver the Presidency to George W. Bush in Bush v. Gore; he was the author of the majority opinion in Citizens United v. Federal Election Commission, which hastened the deregulation of American politics; he upheld Trump's travel ban this term; and his votes on the day-to-day grist of the Supreme Court's docket—on labor law, the environment, and health care—hewed closely to those of his fellow Republican nominees. But, to the dismay of conservatives, he departed from their orthodoxy on some key issues in addition to gay rights, among them affirmative action, the death penalty, and, most notably, abortion rights. In the 1992 case of Planned Parenthood v. Casey, Kennedy voted to uphold Roe v. Wade, and he remained a reluctant but steady advocate for maintaining the precedent.
The whole purpose of Trump's Supreme Court selection process has been to eliminate the possibility of nominating someone who might commit Kennedy's perfidies of moderation. The activists from the Federalist Society and the Heritage Foundation who supplied the President's list of twenty-five prospective nominees are determined to tear down the monuments, on select issues, that Kennedy has built. Their labors have already produced one soaring success, in the confirmation, last year, of Neil Gorsuch. His extremism has exceeded that of his predecessor Antonin Scalia and equalled that of his colleague Clarence Thomas, the Justice with whom he has voted most often.
Yet it's far from certain that the public wants the kinds of rulings that a brazen conservative majority would produce. So the nominee and his or her supporters will avoid spelling out the implications of this judicial philosophy. As with Gorsuch, the nominee will be supported with meaningless buzz phrases: he or she will be opposed to "legislating from the bench" and in favor of "judicial restraint." Like Gorsuch, the nominee will rely on airy generalities rather than on specific examples. It's all the more important, then, to articulate in plain English what, if such a nominee is confirmed, a new majority will do.
It will overrule Roe v. Wade, allowing states to ban abortions and to criminally prosecute any physicians and nurses who perform them. It will allow shopkeepers, restaurateurs, and hotel owners to refuse service to gay customers on religious grounds. It will guarantee that fewer African-American and Latino students attend élite universities. It will approve laws designed to hinder voting rights. It will sanction execution by grotesque means. It will invoke the Second Amendment to prohibit states from engaging in gun control, including the regulation of machine guns and bump stocks.
And these are just the issues that draw the most attention. In many respects, the most important right-wing agenda item for the judiciary is the undermining of the regulatory state. In the rush of conservative rulings at the end of this term, one of the most important received relatively little notice. In Janus v. afscme, a 5–4 majority (including Kennedy) said that public employees who receive the benefits of union-negotiated contracts can excuse themselves from paying union dues. In doing so, the Justices overruled a Supreme Court precedent that, as it happens, was nearly as old as Roe v. Wade. (Chief Justice John Roberts, who has made much of his reverence for stare decisis, joined in the trashing of this precedent, and will likely join his colleagues in rejecting more of them.) The decision not only cripples public-sector unions—itself a cherished conservative goal—but does so, oddly enough, on First Amendment grounds. The majority said that forcing government workers to pay dues violates their right to free speech. But, as Justice Elena Kagan wrote in a dissent, this is "weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy." She added, "Speech is everywhere—a part of every human activity (employment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech. So the majority's road runs long."
Anthony Kennedy didn't spend his entire career on that road, and there is, in his best opinions, the kind of decency and empathy that characterized many of the moderate Republicans who once dominated the Court, such as Justices Potter Stewart, Harry Blackmun, and Sandra Day O'Connor. Kennedy's words at the conclusion of the Obergefell opinion deserve to be his judicial epitaph. "It would misunderstand these men and women to say they disrespect the idea of marriage," he wrote. "Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right." But the Constitution grants only those rights that the Supreme Court says it grants, and a new majority can and will bestow those rights, and take them away, in chilling new ways. ♦
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