Wednesday, June 27, 2018

For Liberals, Little to Cheer in Kennedy's Final Term

      Justice Anthony M. Kennedy gave liberal advocates and interest group little reason to cheer in his final term with his opinions and votes and no special reason apart from his previous record to mourn his decision to retire after 30 years on the Supreme Court. The news of Kennedy's decision spread as Court watchers were still digesting a batch of major 5-4 decisions in which Kennedy had helped give the Court's conservative bloc the clout to uphold President Trump's travel ban and strike down a 41-year-old precedent beneficial to public sector unions.
      Kennedy's final term is a useful reminder that even though he came to the Court as President Ronald Reagan's third choice — after the ill-fated nominees Robert Bork and Douglas Ginsburg —  he still came as a dyed-in-the-wool Republican with conservative DNA. He helped shift the Court to the right in his initial terms by providing pivotal votes needed to limit remedies in federal job discrimination cases until Congress and President George H.W. Bush enacted a law overturning two of them.
      Kennedy emerged as the swing-vote justice much beloved by liberal interest groups only in 1992 when he provided a critical vote, to widespread surprise, to uphold the abortion rights ruling Roe v. Wade in Planned Parenthood v. Casey (1992). In succeeding years, he gained further acclaim from the political and legal left with decisions in several areas, most famously in three landmark decisions guaranteeing political and legal rights for gays and lesbians.
      That was then, and this is now: in the 2017 term Kennedy was a reliable vote for the conservative bloc in virtually all of the most closely divided decisions. Three years ago, he was celebrated as the author and the critical fifth vote for the decision in Obergefell v. Hodges (2015) that guaranteed marriage rights for same-sex couples nationwide.
      Among his six majority opinions in the 2017 term, however, Kennedy's first was a major blow to liberal advocacy groups. He led a 5-4 majority in Jesner v. Arab Bank that protected foreign corporations from suits in U.S. courts under the Alien Tort Statute for human rights violations abroad. He also discovered and highlighted the purportedly anti-religious comments by Colorado civil rights commissioners in the gay wedding cake case that resulted in his 7-2 opinion in Masterpiece Cakeshop in favor of the Colorado baker who refused to make a cake for a gay couple's wedding celebration.
      Among his other four majority opinions, three were cut from different cloth. The 9-0 decision in Byrd v. United States protected Fourth Amendment rights for unauthorized drivers of rental cars. The 6-3 ruling in Hughes v. United States gave guilty-pleading defendants in federal court the benefits of post-plea reductions in Sentencing Guidelines. The 8-1 ruling in Lozman v. Riviera Beach made it somewhat easier to sue on free-speech grounds for retaliatory arrests.
      In contrast to the decisions most celebrated by Kennedy's liberal admirers, however, not once during the 2017 term did Kennedy give the four liberals the fifth vole they needed to advance their views or to blunt the conservative juggernaut. And Kennedy actually led the dissenters in the liberal bloc's most important 5-4 victory: the decision written by Chief Justice John G. Roberts Jr. in Carpenter v. United States to require police to get a search warrant to obtain cell phone records needed to track a suspect's whereabouts over an extended period.
      Out of 18 5-4 decisions, Kennedy gave his four Republican-appointed conservative colleagues the fifth vote they needed to prevail in 13. Those cases include decisions to enforce mandatory arbitration in the workplace, uphold Ohio's aggressive purge of voter registration rolls, and — in a Kennedy opinion — to uphold states' ability to tax online sales. Only in the term's final decision, the water rights dispute in Florida v. Georgia, did Kennedy provide the fifth vote for the mostly liberal majority that Breyer led in giving Florida a second chance to protect its oyster beds from Georgia's water-hungry farmers.
      Kennedy's final opinion in U.S. Reports will be the toothless two-page concurrence he wrote in the travel ban case, Trump v. Hawaii. He wrote, as though in an advice column instead of a judicial decree, that it was "imperative" for government officials to obey the Constitution even if they had broad discretion "free from judicial scrutiny."
      Three weeks earlier, Kennedy had led the Masterpiece Cakeshop Court in ruling against the Colorado Civil Rights Commission because of stray comments by commissioners that Kennedy viewed as anti-religious. But Kennedy said not a word about the explicitly anti-Muslim comments that President Donald Trump made on the campaign trail and in the White House in advance of adopting a travel ban targeting mostly majority-Muslim countries.
      Gay rights is one of several elements of Kennedy's legacy for liberal interest groups to celebrate. He protected racial preferences in higher education with his decision in Fisher v. University of Texas (2016). In the same year, he protected abortion clinics from overly intrusive state regulations in Whole Woman's Health v. Hellerstedt (2016).  He also widened the scope of the federal Fair Housing Act in Texas Dep't of Housing & Community Affairs v. Inclusive Communities Project, Inc. (2015). And he helped protect juveniles and intellectually disabled offenders from the death penalty with his opinions or votes in a series of cases early in the 2000s.
      Yet Kennedy's conservative DNA came to the surface in his final term, just as it had done in such pivotal recent decisions as the gun rights ruling in District of Columbia v. Heller (2008) and the campaign finance ruling in Citizens United v. Federal Election Commission (2010). But make no mistake: a Trump-nominated and -confirmed successor will shift the Court, sharply and lastingly, toward the extreme positions that the political and legal right has been advancing for the past two decades. The fight over his successor will be fierce, as well it should be, for the stakes for law and justice are high indeed.

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