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The Crucial Stakes for All Americans If Justice Kennedy Resigns from the Supreme Court

by
Elliot Mincberg
Justice Anthony Kennedy

With the confirmation of Neil Gorsuch to the Supreme Court, the right-wing 5-4 Court majority that had included Justice Scalia until last year has unfortunately been restored. Even during that period, however, important protections for LGBTQ Americans, reproductive rights, and other values were achieved when Justice Kennedy joined the four moderates on the Court in crucial 5-4 decisions. But what happens if the rumors are true and Justice Kennedy resigns this summer?

The short answer: disaster for the rights of all Americans, particularly for reproductive rights and LGBTQ individuals. This report discusses 22 critical divided rulings in six areas that are likely to be overruled or significantly undermined if Justice Kennedy leaves the Court and is replaced by a Trump nominee like Gorsuch: LGBTQ rights, reproductive rights, civil and voting rights, the environment, protection from corporate abuse, gun violence, and protection from government abuse.1


LGBTQ Rights

Despite the tremendous damage that the Roberts-Alito Court has done in other areas, the last several years have seen enormous strides with respect to LGBTQ rights and equality, thanks to a series of landmark 5-4 decisions by Justice Kennedy and the four moderates on the Court. Most notable, of course, was the 5-4 decision in Obergefell v. Hodges, 192 L.Ed.2d 609 (2015), recognizing same-sex couples’ constitutional right to marry. But the vociferous dissents in these cases, the narrow 5-4 majorities, and the continued advocacy on the right all make clear that if Justice Kennedy resigns soon, we are likely to see reversal or retreat on LGBTQ rights.

The last several years have seen enormous strides with respect to LGBTQ rights and equality, thanks to a series of landmark 5-4 decisions by Justice Kennedy and the four moderates on the Court.

Two years prior to Obergefell, another important 5-4 decision in United States v. Windsor, 133 S.Ct. 2675 (2013), struck down part of the so-called Defense of Marriage Act, which refused to give federal recognition for tax and other purposes to same-sex marriages that were legal under state law. Justice Kennedy’s majority opinion made clear that based on prior Court precedents, including those that had invalidated state efforts to harm LGBT rights in Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v. Evans, 517 U.S. 620 (1996), DOMA’s “interference with the equal dignity of same-sex marriages” was unconstitutional.2

Unlike Lawrence and Romer, which had been joined by six justices including Justice O’Connor, her replacement by Justice Alito led to four justices vigorously dissenting from the 5-4 decision in Windsor. Despite these same four justices agreeing to strike down other federal statutes concerning campaign finance and voting rights, they strongly criticized, as Justice Alito put it, “unelected judges” on the Court “arrogating to ourselves the power” to overturn DOMA as a law passed by Congress.3 And all four vehemently disagreed with the merits of the majority’s constitutional ruling, with Justice Scalia accusing it of containing “scatter-shot rationales” and “legalistic argle-bargle.”4 There can be no question that with one more vote, the four right-wing justices would have upheld DOMA. In fact, if Justice Kennedy were to be replaced soon by a Justice like these four, even decisions like Lawrence and Romer could be reconsidered and overruled.

Similarly, one more right-wing vote would have reversed (or could overrule in the future) the landmark 5-4 ruling in Obergefell. Based on prior Court precedents, including the unanimous decision overturning state laws that banned interracial marriage in Loving v. Virginia, 388 U.S. 1 (1967), Justice Kennedy’s opinion for the majority explained that under the Constitution, “same-sex couples may not be deprived” of “the fundamental right to marry” on the “same terms and conditions as opposite sex couples.”5 The four dissenters vehemently disagreed, claiming that the majority was improperly overruling the judgment of state legislators and had “no basis” in the Constitution or precedent, as Chief Justice Roberts put it, for the merits of their decision.6 But the dissents went even further and explicitly suggested grounds for undermining or even overruling Obergefell in the future.

Several dissenters discussed what they termed the inevitable “conflict” between the right of marriage equality and claims of religious liberty.7 Chief Justice Roberts, for example, raised concerns about what will happen when people “exercise religion in ways that may be seen to conflict” with the decision, such as religious adoption agencies seeking to confine their services to opposite sex couples or religious colleges limiting married student housing to such couples, and predicted (or invited) that such issues “will soon be before this Court.”8 In fact, even now the Court is considering whether to accept a case from a baker who has refused to make a wedding cake for two men on religious grounds. Adding another justice like the dissenters in Obergefell threatens to seriously undermine the ruling and the principles of that decision.

In addition, Chief Justice Roberts’ dissent repeatedly claimed that the majority’s decision was based on and similar to the “unprincipled approach” of cases later overruled or abandoned by the Court, most notably Lochner v. New York, 198 U.S. 45 (1905).9 Roberts explained that under Lochner, a majority of the Court had used its personal views of economic liberty and the due process clause to overrule numerous New Deal and Progressive Era laws in the early part of the twentieth century, until the Court later “recognized its error and vowed not to repeat it.”10 The implication was clear: the marriage equality ruling is illegitimate and another Court, with a different majority, could well overturn or effectively abandon the ruling in Obergefell.

An earlier 5-4 decision of the Roberts-Alito Court may provide a preview of some of the religiously-framed conflicts that advocates may urge the Court to review after Obergefell and the importance of future appointments to the Court in resolving them. In Christian Legal Society v. Martinez, 561 U.S. 661 (2010), a chapter of the Christian Legal Society (CLS) at a state law school contended that it was entitled to official recognition as a student group, including use of school funds and facilities, even though it refused to abide by a school policy requiring all groups to “accept all comers” regardless of status or beliefs and not to discriminate on grounds including religion and sexual orientation. CLS claimed that the policy violated its First Amendment rights. The Court majority, including Justice Kennedy, narrowly rejected the CLS claim, pointing out that CLS could continue to meet but could not demand official recognition or funding, because the “all-comers” policy was an appropriate “viewpoint neutral” rule.11

The four conservative justices joined in a vigorous dissent by Justice Alito. The dissent claimed that the neutral school policy was a “pretext” for discrimination based on religious viewpoint.12 Quoting a friend of the court brief, Alito maintained that the decision would result in the “marginalization” of “religious groups” and would constitute “a judicial dagger at the heart” of such groups.13 Just as the four conservative justices argued for what Justice Ginsburg called a “preferential exemption” for CLS from the anti-discrimination rule14, it is unfortunately easy to predict that these justices would support efforts to whittle away at, if not overrule, the LGBT rights recognized in Obergefell and other decisions. With the appointment of a right-wing justice to replace Justice Kennedy, they would likely have the votes to prevail.

A recent development underlines the importance of the Supreme Court concerning LGBTQ rights. Beginning in 2015, the Equal Employment Opportunity Commission and several lower courts have ruled that workplace discrimination based on sexual orientation is already illegal under Title VII’s existing prohibition on discrimination on the basis of sex. There is no question that the courts will be considering this ruling and this issue, which is very likely to be finally resolved by the Supreme Court in the future.15 Already, private employers have begun to claim that their religious views on LGBTQ issues should exempt them from such prohibitions, and one lower court has agreed. If Justice Kennedy is replaced by a Justice like the dissenters in Obergefell, LGBTQ rights in cases like these are in serious peril.


Reproductive Rights

When Justice Kennedy has joined the four far-right conservatives on the Supreme Court, the resulting 5-4 majority has done significant damage to women’s reproductive rights. The most notable example has been Gonzales v. Carhart, 550 U.S. 124 (2007), where the 5-4 majority upheld a congressional statute barring certain late-term or “partial birth” abortions, despite the Court’s decision only seven years earlier striking down a similar state law in Stenberg v. Carhart, 530 U.S. 914 (2000). But in several crucial cases, Justice Kennedy has joined with moderates on the Court to protect reproductive rights and turn back efforts to overrule Roe v. Wade — protections that are seriously at risk if he leaves the Court.

Most recently, Justice Kennedy joined with the moderates on the Court in deciding to strike down an extremely restrictive Texas abortion-related statute in Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292 (2016). Decided on the last day of the 2015-16 term, this 5-3 opinion authored by Justice Breyer struck down Texas’s notorious targeted regulation of abortion providers (TRAP) law. Such laws, pushed by anti-choice zealots across the country, are presented as protections for women’s health, but in reality they are designed to reduce if not eliminate women’s access to abortion. Such laws are a key component of the far right’s long-term project of chipping away at the constitutional right to an abortion. Fortunately, the result in that case instead was a ringing affirmation of that right.

The majority (Justices Breyer, Kennedy, Ginsburg, Sotomayor, and Kagan) reversed an opinion of the Fifth Circuit Court of Appeals that had upheld requirements that (1) licensed abortion facilities meet the same building requirements as an ambulatory surgical center, and (2) those performing abortions have admitting privileges at a hospital within 30 miles. The Court majority ruled that these are medically unnecessary regulations with the effect of putting an undue burden on women’s ability to exercise their constitutional rights, a key part of the test set forth by the Supreme Court in 1992’s Planned Parenthood v. Casey, 505 U.S. 833 (1992)

The Court majority criticized the Fifth Circuit for not providing the level of scrutiny appropriate for a constitutional right, but instead treating its review of the law with the same deference that ordinary legislation receives. The justices directed lower courts to look critically at whether a law affecting abortion actually accomplishes the goals the state is using to justify it. In this case, the Court majority went into great detail on how the Texas law burdens women’s access to abortion, and it demonstrated how the law was, in fact, not necessary to protect women’s health but makes it much harder to get access to abortion services. As such, the burden was undue, and thus unconstitutional.

Whole Woman’s Health strongly reaffirms Casey, and is an important reminder of the dangers to that ruling created by shifts on the Court since then. Justice Kennedy is the only member of the famous three-justice plurality in Casey that voted to uphold the “essential holding” of Roe v. Wade and strike down part of a restrictive Pennsylvania abortion law.16 The other four moderates now on the Court clearly agree with this ruling, as reflected in their votes in Whole Women’s Health. But the three dissenters in that case (Roberts, Thomas, and Alito) clearly do not; Thomas was on the Court and dissented in Casey itself. Given the widespread expectation that Justice Gorsuch will join those three, the result if Justice Kennedy leaves the Court would be a disaster. Not only would Whole Women’s Health be at risk, but the addition of a justice like Gorsuch or Alito threatens to result in the overruling or undermining of Casey and Roe. Women’s reproductive rights would be in great peril if Justice Kennedy leaves the Court and is replaced by President Trump.


Civil and Voting Rights

Although the Roberts-Alito Court has done severe damage to civil and voting rights in this country,17 there have been a number of key cases where Justice Kennedy has joined with moderates on the Court and preserved crucial protections for all Americans. Those protections and more are in serious jeopardy if he leaves the Court and is replaced by a Donald Trump nominee.

Most recently, Justice Kennedy joined moderates on the Supreme Court in a critical decision that preserved affirmative action in higher education in Fisher v. University of Texas at Austin, 136 S.Ct. 2198 (2016). In a 4-3 decision, the majority upheld the University of Texas at Austin’s affirmative action program, a carefully considered plan that has been in litigation for years. (Justice Kagan recused herself from the case because she had been involved in it while at the Justice Department, leaving only seven justices and making a tie vote impossible.) This was a major victory for Americans who cherish our national ideals of fairness and equal opportunities for all. Had Justice Scalia been on the Court, the result most likely would have been a 4-4 tie, due to Kagan’s isolated recusal as opposed to an extended vacancy.

Justice Kennedy wrote for the majority, joined by Justices Ginsburg, Breyer, and Sotomayor. The majority confirmed that UT has a compelling interest in the educational benefits that flow from student body diversity. The Fisher opinion also stated that universities must justify the use of race in admissions, even in the minor role it played at UT, with extensive research and careful analysis. The opinion went into great detail about the exhaustive efforts UT had made to determine whether it was necessary to ever take race into consideration in its admissions program. But the Court also noted that circumstances can change: Any university (including UT Austin itself) must regularly update its in-depth analysis of whether their admissions policies are adequately serving the purpose of providing the educational benefits of a diverse student body, or whether any ways to achieve the same goal can be devised that do not use race as a criterion. That would seem to ensure that public university affirmative action programs can be retained or possibly even expanded when necessary, or cut back or even eliminated if they are no longer needed to achieve their compelling goal.

Had the dissenters prevailed, however, affirmative action designed to promote diversity in higher education would effectively have been eliminated, no matter how well researched and justified. The continued presence of Justice Kennedy on the Court during Trump’s presidency is crucial to the future of affirmative action in higher education.

Justice Kennedy has similarly been critical in several decisions on race and redistricting, helping form 5-4 majorities that narrowly avoided damaging results concerning voting rights. In League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006), the majority invalidated part of a Texas redistricting plan that redrew a district that was supposed to be Latino-majority in such a way as to deny Latino voters as a group the opportunity to elect a candidate of their choosing. If the minority had prevailed, the result would have “eroded minority voting rights in Texas.”18 Similarly, a 5-4 majority in Alabama Legislative Black Caucus v. Alabama, 135 S.Ct. 1257 (2015), overturned a lower court ruling that had rejected all challenges to an Alabama redistricting plan that allegedly had improperly packed minority voters in a smaller number of districts to decrease minority voting strength and help Republicans. It ruled that such challenges must be considered to individual districts, and strongly suggested that at least some of the districts were improperly racially gerrymandered.19 One more vote with Roberts, Scalia, Alito, and Thomas in these cases would have harmed African-American and Latino voting rights.

More recently, Justice Kennedy joined the four moderates in rejecting an effort to harm voting by making it very difficult for voters to stop partisan redistricting.

More recently, Justice Kennedy joined the four moderates in rejecting an effort to harm voting by making it very difficult for voters to stop partisan redistricting. In 2000, Arizona voters adopted a state constitutional amendment permanently removing redistricting authority from the state legislature and assigning it to an independent commission. After the 2012 congressional redistricting, the Arizona Legislature went to federal court and argued that, for the purposes of congressional redistricting, the ballot initiative violated the Constitution’s Elections Clause, which states that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof” (emphasis added). In a 5-4 decision, the Supreme Court rejected the challenge in Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S.Ct. 2652 (2015).

Writing for the moderates and Justice Kennedy, Justice Ginsburg noted in the very first paragraph that partisan gerrymanders are “incompatible with democratic principles.”20 Those democratic principles infused the opinion as the Court found that the Elections Clause does not prohibit the people of Arizona from creating an independent commission to draw congressional districts. The Court noted that dictionaries in the founding era defined “legislature” broadly as the power that makes laws. That power varies by state; in Arizona, it includes the people acting through ballot initiative. Noting that the Constitution conceives of “the people as the font of governmental power,” Ginsburg quoted James Madison: “The genius of republican liberty seems to demand … not only that all power should be derived from the people but that those entrusted with it should be kept in dependence on the people.”21

Writing for the four dissenters, however, Chief Justice Roberts argued that the Founders understood “legislature” to be limited to a representative body. The dissent includes an appendix of 17 Constitutional provisions referring to the “legislature” of a state, some of which Roberts claimed could not be read to include “the people,” including some expressly distinguishing between “the legislature” and “the people.” One key example involves the election of senators. Article I originally called for them to be “chosen by the Legislature.” After what Roberts calls “an arduous, decades-long campaign” by reformers, this was altered by the 17th Amendment, which called for senators to be “elected by the people.” “What chumps! Didn’t [the reformers] realize that all they had to do was interpret the constitutional term ‘the Legislature’ to mean ‘the people?’?”22

One more vote with Roberts and the other dissenters would have jeopardized congressional redistricting commissions in other states that allow such ballot initiatives. Indeed, the Court could have undermined all manner of election-related state laws adopted by voter referenda. Before oral arguments, the Brennan Center classified as at risk “21 state laws adopted by ballot initiative and another 45 that needed approval by voters via a legislative referendum or constitutional amendment. Examples of such laws include Mississippi’s voter identification law, Oregon’s vote by mail ballot elections, and Ohio’s ban on straight party voting.”23

In the crucial areas of affirmative action, fair housing, and redistricting, narrow 5-4 majorities on the Court including Justice Kennedy have protected the rights of all Americans.

One more such vote would also have devastated effective enforcement of the federal Fair Housing Act in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, 192 L.Ed.2d 514 (2015). The issue in that case was whether practices that have a discriminatory impact on the ability of racial minorities, women, disabled people, families with children, and others to obtain housing and are not properly justified are illegal under the Act. Every court of appeals that had considered the issue, and both Republican and Democratic officials at the Department of Housing and Urban Development, had answered that question yes over the past 30 years, but many feared that the Court would overrule those decisions and say that specific intent to discriminate must be proven to violate the law.24 Despite vigorous dissents, Justice Kennedy and the four moderate justices rejected those arguments and upheld the discriminatory impact standard under the Fair Housing Act. As the New York Times concluded, that decision was “critical” to combat harm to “minorities and other vulnerable groups the law was written to protect.”25

The overall conclusion is clear. In the crucial areas of affirmative action, fair housing, and redistricting, narrow 5-4 majorities on the Court including Justice Kennedy have protected the rights of all Americans. If Kennedy leaves the Court and is replaced by President Trump with a justice like the dissenters in these cases, the result undoubtedly will be serious damage to these and other civil and voting rights.


Protecting the Environment

The combination of the Roberts-Alito Court and the present and future actions of the Trump Administration clearly have caused and will create enormous damage to the cause of environmental protection. But even more damage would result if Justice Kennedy leaves the Court and is replaced by a Trump nominee. Several closely divided decisions in which his vote has been crucial are likely to be undermined or overruled if Trump picks a life-time replacement. This is particularly troubling over the long run, since although administrative agencies under Trump may do little to advance environmental protection, decisions limiting such agencies’ authority could be extremely harmful under future Administrations.

The addition of one more far right conservative justice could remove a substantial proportion of our nation’s waters from federal environmental protection under the Clean Water Act.

For example, the addition of one more far right conservative justice could remove a substantial proportion of our nation’s waters from federal environmental protection under the Clean Water Act. In Rapanos v. United States, 547 U.S. 715 (2006), the plaintiffs wanted to fill wetlands in order to build a shopping mall and condos. Four of the more conservative justices wanted to adopt a very narrow reading of the law. According to Justice Scalia’s four-Justice plurality opinion, the phrase “the waters of the United States” includes only bodies of water that are “streams[,] … oceans, rivers, [and] lakes,” which would not include such things as wetlands.26 To find otherwise, they claimed, would “result in a significant impingement of the States’ traditional and primary power over land and water use.” 27 The four more liberal justices found this cramped definition inconsistent with the law’s stated purpose of restoring and maintaining the chemical, physical, and biological integrity of the nation’s water. They also concluded that regulation of wetlands by the Federal government as part of the term “waters of the United States” was perfectly valid and reasonable.28

In this 4-1-4 decision, Justice Kennedy’s concurrence was more in line with the conservative approach, holding that only if a wetland or non-navigable waterway bears a “significant nexus” to a traditional navigable waterway does it fall within the power of the Clean Water Act.29 While Kennedy’s view did not restrict the federal government’s ability to regulate wetlands as severely as the four other conservatives would have, the conflicting approaches have made the resulting precedent unclear and the balance a tenuous one. According to Lawrence Hurley of Greenwire, “[l]awyers rarely agree on anything, but here’s an exception: They all say the Supreme Court bungled Rapanos …”30 As a result, the decision left wetlands regulation in a confusing “mess.”31 Adding another conservative justice would mean that huge amounts of wetlands would not be covered at all under the Clean Water Act, making it harder for the law to serve its stated purpose.

A Court with one more right-wing justice could also have a major effect on the ability of the EPA to regulate greenhouse gas emissions. In Massachusetts v. Environmental Protection Agency, twelve states and several cities sued the EPA under the Bush Administration in order to establish its power to regulate carbon dioxide and other greenhouse gas emissions. The EPA had earlier found that it did not have the authority to do so because such emissions are not “air pollutants” as defined by the Clean Air Act and, even if they were, there was uncertainty about their connection to global warming. In a 5-4 decision, the Court found that greenhouse gases easily fit into the statute’s broad definition of air pollutants. The EPA was also found to have “offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change.”32 Therefore, “[i]ts action was … ‘arbitrary, capricious, … or otherwise not in accordance with law.’”33 Justice Stevens, writing for the majority that included Justices Kennedy, Ginsburg, and Breyer, found that under the Clean Air Act, the EPA could avoid having to regulate in this area “only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.”34 In short, the majority ruled, the EPA could and should regulate greenhouse gas emissions.

In contrast, the four most conservative justices — Chief Justice Roberts and Justices Scalia, Alito, and Thomas — would have denied the states’ claims. They argued that the states did not have standing to sue and that, even if they did, the Court should defer to the agency. Adding a justice like one of them to replace Kennedy would likely make it impossible for progressive states to prevail in similar lawsuits against a Trump EPA. And once the EPA truly resumes its mission to protect the environment after Trump, that mission will be severely threatened if decisions like Massachusetts v. EPA are undermined or overruled,


Protection from Corporate Abuse

The Roberts-Alito Court has done significant damage to the ability of consumers and workers to protect themselves against abuse by corporations.35 More corporate abuse of power can unfortunately be expected under President Trump. But in a number of important 5-4 Supreme Court decisions, Justice Kennedy has joined with Justices Ginsburg and Breyer and other moderates to help Americans confronted with overreaching by corporations. Replacing Justice Kennedy with a Trump nominee will seriously harm consumers and workers by undermining or overruling these decisions.

For example, corporations often argue that they cannot be sued for damages they cause under state laws because such claims are “pre-empted” by federal regulatory law that does not allow damage suits. In one important case, Justice Kennedy joined with moderates on the Court, including Justices Ginsburg and Breyer, in a 5-4 decision rejecting attempts to misuse pre-emption to do harm to consumers. In Altria Group, Inc. v. Good, 555 U.S. 70 (2008), Justice Kennedy and the four moderates rejected an assertion that federal tobacco-labeling rules pre-empted a state law claim for damages because of deceptive tobacco ads, an important ruling concerning cigarette company liability. This important ruling would have been reversed, and could be in the future, with one more right-wing vote on the Court.

In a number of important 5-4 Supreme Court decisions, Justice Kennedy has joined with Justices Ginsburg and Breyer and other moderates to help Americans confronted with overreaching by corporations.

Several other 5-4 decisions have just barely rejected far right legal arguments that would have harmed consumers. In Merrama v. Citizens Bank of Massachusetts, 549 U.S. 365 (2007), Justice Kennedy joined with the four moderate justices in rejecting an argument by Justice Alito that would have allowed a bankrupt company that acted in bad faith to convert to another form of bankruptcy that would have harmed good faith creditors. And in Caperton v. A.T. Massey Coal Co., 556 U.S.868 (2009), Justice Kennedy again joined with the moderate justices in ruling that, under the Due Process Clause, an elected state supreme court judge who owed his narrow campaign victory to enormous election spending by the president of a coal company could not participate in reviewing a judgment that involved a large verdict against that company.36

Although the Roberts-Alito Court has done serious damage to procedural tools that are crucial to the ability of consumers and workers to sue corporations in court, Justice Kennedy has joined with the Court’s moderates to limit such damage in one important case. Campbell-Ewald Company v. Gomez, 136 S.Ct. 663 (2016), concerned class action suits, which are often the only way to effectively obtain redress from large companies for illegal conduct and provide deterrence against others. This case threatened to make the use of class actions nearly impossible. The company was asking the Court to rule that a defendant can terminate a class-action suit against it simply by making a settlement offer to the individual representing the class, even if it’s not accepted, before that individual files a motion for class certification with the court. The argument was that offering the settlement would mean there was no longer a “case or controversy,” which Article III of the Constitution requires for a federal court to have jurisdiction in a case.

The Court rejected the corporation’s argument. Writing for a 5-member majority (the moderates plus Justice Kennedy), Justice Ginsburg concluded that if the plaintiff rejects the offered settlement, the case does not automatically terminate. She noted that ruling otherwise would improperly let corporations spend minimal amounts to pay off individual plaintiffs and forestall all sorts of class actions. (Justice Thomas concurred with the result reached by the majority based on a different and more limited approach).

However, the Court announced a potential loophole for corporations: The Court noted that it was not deciding whether a corporation could prevent a class action suit by placing the full amount of the plaintiff’s individual claim in an account payable to the plaintiff (rather than just making an offer), and then having the court enter a judgment in favor of the plaintiff in that amount and dismissing the case before the plaintiff has a chance to ask the judge to certify the proposed class. Such a case is likely to reach the Court soon, making the continued presence of Justice Kennedy very important to the future of class actions.


Protection from Government Abuse

Particularly under a Trump Administration, Americans are understandably concerned about abuse of government authority to harm individuals. State and local governments also have been guilty of official abuse. Although the Roberts-Alito Court has issued a number of troubling decisions in this area, Justice Kennedy has joined moderates on the Court like Justices Ginsburg and Breyer in helping prevent or redress such abuse in a number of important cases. Such protections will be in jeopardy if he is replaced by a Trump nominee.

To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say what the law is.

Associate Justice Anthony Kennedy, Boumediene v. Bush

A particularly important decision was Boumediene v. Bush, 553 U.S. 723 (2008), in which Justice Kennedy wrote a 5-4 decision joined by the Court’s moderates that struck down key parts of a Bush Administration-supported law and ruled that prisoners detained at Guantanamo can file habeas corpus claims in federal court to challenge detention. The Bush Administration argued in that case that even if there was a constitutional right to file such claims, a Congressional statute supported and signed by the President could limit that right. (Interestingly, although he had left the Bush Administration by the time of the decision, Justice Gorsuch played an important role in drafting and promoting the law struck down in Boumediene.) The majority emphatically disagreed. As Justice Kennedy explained, to “hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say what the law is.”37 A federal court of appeals has recently cited that language in rejecting a similar argument by the Trump Administration in favor of its immigration ban. Replacing Justice Kennedy with a far right justice threatens this important principle, which could not be more important under the Trump Administration.

Another significant decision in which Justice Kennedy joined the Court’s four moderates in rejecting an effort to weaken an important safeguard against abuse of power by federal officials was United States v. Kwan Fun Wong, 135 S.Ct. 1625 (2015), which concerned the Federal Torts Claims Act (FTCA). That law allows people to file lawsuits for damages when they have been improperly harmed by federal agencies. The four right-wing justices who dissented in that case would have held that an FTCA suit should be thrown out of court for failure to follow strict time limits, even when that failure may have been caused by government officials themselves because of newly discovered evidence. Justice Kagan’s majority opinion explained that such “harsh consequences” were not justified under prior precedent and based on the text, context, and legislative history of the statute.38

Justice Kennedy has joined the Court’s moderate justices in rejecting attempts to sanction abuse or lack of accountability by state or local officials.

In several cases, Justice Kennedy has joined the Court’s moderate justices in rejecting attempts to sanction abuse or lack of accountability by state or local officials. For example, in Kingsley v. Hendrickson, 192 L.Ed. 2d 416 (2015), Justice Breyer ruled for the 5-4 majority that a pretrial detainee who brings a suit for excessive force by officials (in this case including slamming his head against a concrete bunk) can prevail if it is proved that the force used was objectively unreasonable, and is not required to prove, as someone already convicted of crime would, that the officials intended “maliciously and sadistically to cause harm.”39 In City of Los Angeles v. Patel, 192 L.Ed.2d 435 (2015), Justice Sotomayor ruled for the 5-4 majority that a Los Angeles ordinance that allowed police officers to demand to see identifying and other private information in hotel registers, without any kind of warrant, and then immediately arrest any hotel employee who declines to comply, without any pre-compliance review, was unconstitutional. The four dissenters—Chief Justice Roberts and Justices Scalia, Alito, and Thomas – would have upheld the ordinance and allowed police to demand what Justice Sotomayor described as instant access to such records without “individualized” review and “at the risk of a criminal penalty.”40

Several important 5-4 decisions that included Justice Kennedy have concerned improper action by state officials. In Douglas v. Independent Living Center, 132 S.Ct. 1204 (2012), the majority ruled that lawsuits can be filed to challenge sharp state cuts to Medicaid as violating federal law, even though the dissent would have precluded such challenges altogether. And in Haywood v. Drown, 556 U.S. 729 (2009), the majority held that states cannot prohibit civil rights lawsuits under 42 U.S.C. 1983 against prison officials from being pursued in state court. These decisions and more would be seriously at risk if Justice Kennedy is replaced a right-wing Trump nominee.


Conclusion

Justice Kennedy’s historic and significant role on the Supreme Court makes clear that the stakes could not be higher if he resigns soon and President Trump nominates his successor. He has literally made the difference between protecting rights and equality for LGBTQ Americans and women’s reproductive rights, and losing such rights completely to restrictive state and other laws. His vote has prevented harm to African American and Latino voting rights from state redistricting plans, and has upheld affirmative action and effective enforcement of the Fair Housing Act. He has made the difference in several important environmental cases, particularly concerning the ability of states to challenge the EPA when it abdicates from its mission to help protect the environment as under an unfavorable president. And he powerfully articulated and was the deciding vote on a crucial principle concerning executive power: It is the duty of the Court to interpret and apply the Constitution and neither the President nor Congress can turn the Constitution on and off like a light switch. This principle is particularly important during the Trump presidency. Justice Kennedy’s continuing role on the Supreme Court is critical, and the stakes are enormous for all Americans if he resigns.


  1. In each of the cases discussed below, Justice Kennedy was indispensable in providing the 5 votes needed to prevail on the Court. This report includes only civil cases, and does not include several criminal law cases in which Justice Kennedy provided a crucial fifth vote that permitted moderates to prevail. There ae several other 5-4 decisions that favored Americans’ rights that Justice Kennedy did not join, such as the 5-4 decision upholding the Affordable Care Act, which are not included in this memorandum. This report also assumes, as ample evidence has demonstrated, that Justice Gorsuch will be at least as conservative as was the late Justice Scalia on the crucial legal issues discussed here, including LGBTQ rights and reproductive rights. ↩


  2. Windsor, 133 S.Ct. at 2693. ↩


  3. Id. at 2718. ↩


  4. Id. at 2709. ↩


  5. Obergefell, 192 L.Ed.2d at 631. ↩


  6. Id. at 639. ↩


  7. Id. at 668. ↩


  8. Id. at 654. ↩


  9. Id. at 647. ↩


  10. Id. at 645. ↩


  11. See Martinez, 561 U.S. at 668, 669. ↩


  12. Id. at 707. ↩


  13. Id. at 741. ↩


  14. Id. at 669 ↩


  15. See N. Scheiber, “U.S. agency rules for gays in workplace discrimination,” New York Times (July 17, 2015) ↩


  16. See Casey, 505 U.S. at 834. ↩


  17. See People For the American Way, Judgment Day 2016 (2015) (“Judgment Day”) at 11-15) ↩


  18. See LULAC, “Hispanic voters vindicated in LULAC v. Perry Texas Redistricting Case,” (June 28, 2006). In one important respect, the decision was harmful to voting rights since, by a 5-4 majority, the Court refused to adjudicate a challenge to partisan redistricting in Texas that transformed the state congressional delegation from slightly Democratic to overwhelmingly Republican. ↩


  19. See R.Hasen, “Opinion Analysis: A small victory for minority voters or a case with ‘profound ‘constitutional implications?” SCOTUSblog (March 28, 2015). ↩


  20. Arizona Independent Redistricting Commission, 135 S.Ct. at 2658. ↩


  21. Arizona Independent Redistricting Commission, 135 S.Ct. at 2674-5, quoting The Federalist No. 37. ↩


  22. Arizona Independent Redistricting Commission, 192 L. Ed. 2d at 736-37. ↩


  23. “Could the Supreme Court Make Dozens of State Election Laws Unconstitutional?” Brennan Center For Justice, (accessed August 10, 2015). ↩


  24. See “A Win for fair housing,” Baltimore Sun (July 6, 2015). ↩


  25. “The Supreme Court Keeps the fair housing law effective,” New York Times (June 25, 2015). ↩


  26. Rapanos, 547 U.S. at 739. ↩


  27. Id. at 738 ↩


  28. Id. at 788 (“The Corps’ resulting decision to treat these wetlands as encompassed within the term “waters of the United States” is a quintessential example of the Executive’s reasonable interpretation of a statutory provision. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-845 (1984).”) ↩


  29. Id. at 753. ↩


  30. L. Hurley, “Supreme Court’s Murky Clean Water Act Ruling Created Legal Quagmire,” New York Times (Feb. 7, 2011). ↩


  31. Id. (“The short answer is that the state of post-Rapanos wetlands jurisdiction is a mess,” said Richard Frank, director of the California Environmental Law and Policy Center at University of California, Davis. “Rapanos produced a broad consensus of opinion, virtually unheard of when it comes to wetlands regulation, that the Supreme Court had made things worse, rather than better.”) ↩


  32. Massachusetts v. EPA, 127 S. Ct. 1438, 1463 (2007). ↩


  33. Id. at 1463. ↩


  34. Id. at 1462. ↩


  35. See Judgment Day at 22-24, 34-35 ↩


  36. In one cases, a narrow 5-4 majority including Justices Kennedy, Ginsburg and Breyer ruled in favor of workers’ rights, which could well be threatened by one additional right-wing justice to replace Kennedy… See U.S. Airways v. McCutcheon, 133 S.Ct. 1523 (2013)(5-4 ruling favoring workers concerning pension rights under federal statute). ↩


  37. Boumediene, 553 U.S. at 765. ↩


  38. Wong, 135 S.Ct. at 1632. In another case where Justice Kennedy joined the four moderates, NLRB v. Noel Canning, 134 S.Ct. 2550(2014), Justice Scalia’s opinion for the other four justices would have held that even where Congress abuses its authority and refuses to vote on confirming Presidential nominees, the President cannot make recess appointments except where vacancies actually open during the brief recess between Congressional sessions. Although all nine justices agreed that the NLRB appointments in Noel Canning itself were improper, Justice Breyer’s opinion for the majority explained that Justice Scalia’s view “would render illegitimate thousands of recess appointments reaching all the way back to the founding era” and would effectively write the Recess Appointments Clause “out of the Constitution.” Noel Canning, 134 S.Ct. at 2577 ↩


  39. Kingsley, 192 L.Ed.2d at 428. ↩


  40. Patel, 192 L.Ed.2d at 447. ↩