In the two weeks before Justice Anthony Kennedy announced that he would retire, the high court issued five very bad decisions that will grievously harm many Americans and America for decades, at the very least. They are, one, National Institute of Family and Life Advocates v. Becerra, Attorney General of California involving “pro-life” unlicensed crisis pregnancy centers; two, Janus v. American Federation of State County and Municipal Employees, involving agency fees paid by non-union members to unions for negotiating better compensation and benefits for them; three, Ohio v. American Express, involving an antitrust challenge to a credit card practice that raises merchant and consumer prices by $ billions annually; four, Trump v. Hawaii, involving our openly bigoted President’s third attempt to ban most Muslim aliens from entering the United States; and five, Masterpiece Cakeshop v. Colorado Civil Rights Commission, involving a bakers refusal, on religious grounds, to bake a wedding cake for a same sex couple.
In each of these five, Kennedy was the deciding vote in a five/four split, except for the misleading seven/two decision in Masterpiece Cakeshop, Justice Kennedy’s “you can have your marriage but not eat your wedding cake too” majority opinion. Kennedy’s purported “middle of the Court” power to decide forced the 7-2 decision that no justice other than Kennedy liked or believed in. Therefore, all agreed the decision should have no precedential value -like another Kennedy swing vote abomination Bush v. Gore that decided the 2000 election.
In Masterpiece Cakeshop, Kennedy’s concern that Colorado’s civil rights commission had in public statements exhibited hostility to a baker’s religious beliefs (about marriage being exclusively boy/girl) didn’t stop him from casting the deciding vote upholding Trump’s third travel ban. Kennedy agreed that all the President’s viciously anti-Muslim public statements had no relevance. Non-con-law buffs that want an exposition on how Kennedy can manage those two contradictory votes about the relevance of public official hostility toward religious belief are invited to H.L.’s con law and First Amendment courses. It involves the “level of judicial scrutiny” game that is used by judges like Kennedy to reach their desired outcome.
Those in the moderate right, center and left who bemoan Kennedy’s departure and consider his service to have been beneficial, need remedial work in history and math. Kennedy’s so-called swing vote has almost always been cast for the right, reactionary and retrograde position. He’s done this with no overarching or consistent philosophy behind his votes, though one ex-clerk says that “optimism” characterized most of his opinions. So, let’s go with that. Kennedy’s pervasive optimism has most painfully been experienced by his SCOTUS colleagues, both to his left and those who sat uncomfortably with him on the right. As usual, the lefties have been too timid and polite to point this out. But Antonin Scalia, of blessed memory, was neither.
He frequently mocked his colleague, as when Kennedy opined that “[A]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of life” Scalia referred to it as Kennedy’s “famed sweet-mystery-of-life passage.” Kennedy’s Hallmark greeting card-like formulation didn’t stop him from casting the deciding vote and explaining why people merely accused of non-violent infractions like unleashed dog, noisy muffler and inoperable headlight could be strip searched – “squat, spread, cough and lift your testicles.” Florence v. Board of Chosen Freeholders (2012).
Kennedy’s remonstrance about public officials respecting religious beliefs didn’t prevent his deciding vote and opinion to give town officials the right to begin public town meetings, attended by people of many different or no religious faith with requests to “stand and pray in the name of Jesus Christ” invoke “the saving sacrifice of Jesus Christ on the cross,” and “the plan of redemption that is fulfilled in Jesus Christ” and seek “the guidance of the Holy Spirit as the Greece Town Board meets” Town of Greece v. Galloway (2014).
The hand wringing over Kennedy’s departure is most often rationalized with fear or a prediction that without him Obergefell (marriage equality) and Roe v. Wade (abortion rights) are endangered precedents. H.L. predicts it will not happen and most importantly because the real swing vote on the Court, Chief Justice John Roberts, will not allow that to happen. Roberts, a jurist I almost always disagree with, has proven himself a true Chief. He has done that in crucially important cases, voting against his own predilections because they conflicted with precedent and/or because he understood a decision contrary to his own beliefs was needed to move the nation forward. Roberts did that in the ObamaCare cases, delivering on a prediction H.L. made while rejecting the almost unanimous prediction that Kennedy would provide the swing and deciding vote. See “Watch Out for Kennedy” (April 30, 2017, Albany Times Union) and “Roberts Seizes the Moment” (July 7, 2012, Albany Times Union).
A war looms ahead over Anthony Kennedy’s replacement. If last year’s Gorsuch confirmation contest is predictive, H.L.’s side is likely to lose again. But little has been lost with the retirement of Anthony Kennedy. The next seat, the one to be filled after the next vacancy will make a real difference for the course of the high court.