From Sacramento to Supreme Court, a personalized look at Justice Kennedy
The just completed Supreme Court term was, by far, the most conservative in recent memory. Almost without exception, the conservative position prevailed in every major decision. It was a term for conservatives to rejoice about and for liberals to see as a harbinger of what to expect for years to come. The retirement of Justice Anthony Kennedy ensures that the court will be even more conservative for a long time.
One explanation for the court’s stunning consistent conservatism this year, in fact, is Justice Kennedy. He widely has been described as the “swing justice” on the court, but he didn’t swing at all this term. There were 19 5-4 rulings out of 63 decisions. Justice Kennedy voted with Chief Justice Roberts and Justices Thomas, Alito, and Gorsuch in 14 of them. He voted with the liberal justices – Ginsburg, Breyer, Sotomayor, and Kagan – zero times. A year ago, in the ideologically divided cases, Justice Kennedy was with the liberals 57 percent of the time.
Elections, or more precisely the Electoral College, matter. With the new justice, it will be the most conservative court since the mid-1930s.
The conservatism of the term also can be explained in another way: elections, or more precisely the Electoral College, matter.
If Hillary Clinton had been elected and had replaced Antonin Scalia with Merrick Garland or someone more liberal, it is likely that the results in virtually all of these 5-4 cases would have come out the other way. Republican voters understood the importance of the November 2016 election for the Supreme Court much more than Democratic ones. Of those who voted for Trump, 56 percent said that the Supreme Court was the most important factor in their choice for president, but only 41 percent of those who voted for Hillary Clinton said this.
What explains the decisions of October Term 2017 is not any principle like judicial restraint or originalism, but simply the conservative values of the majority of the justices. The justices were adhering to the vision of the Republican platform.
Sometimes the justices engaged in remarkable judicial activism, such as in Janus v. American Federation, in which the court overturned a 41-year-old precedent and held that no longer can public employees be required to pay the “fair share” of union dues that go to support collective bargaining. For four decades the court had adhered to the view that non-union members benefit from collective bargaining in their wages, their hours, their working conditions. They should not be able to be free riders. But on Wednesday, June 27, the court said that requiring this payment is impermissible compelled speech and invalidated provisions in tens of thousands of contracts between governments and workers.
In other cases, the court exhibited great judicial passivity. In upholding President Donald Trump’s travel ban in Trump v. Hawaii, Chief Justice Roberts’ majority opinion expressed enormous deference to the president in the area of immigration, even when the decision was motivated by a frequently expressed desire for a “total and complete shutdown of Muslims entering the United States.” The court set a dangerous precedent that allows a president to presume that people are more dangerous just because of their religion or their country of residence.
Even apart from the 5-4 decisions, the conservative position prevailed, though sometimes more narrowly. The court had two cases challenging the practice of partisan gerrymandering, where the political party that controls the legislature draws election districts to maximize safe seats for that party. This undermines the democratic process; no longer is it voters choosing their elected officials, but rather it is elected officials choosing their voters. The court dismissed both cases on procedural grounds.
In Masterpiece Cakeshop v. Colorado Civil Rights Commission the court ruled in favor of a baker who refused to design and bake a cake for a gay couple’s wedding celebration. The ruling was narrow, but overturned a lower court decision in favor of the gay couple.
The announcement of Justice Kennedy’s retirement and his replacement by President Trump is going to mean a court that will be very conservative for many, many years. Roberts, Thomas, Alito, and Gorsuch are 70 years old or younger and each easily could remain on the court for 10 or 20 more years.
With the new justice, it will be the most conservative court since the mid-1930s. With five votes coming up to overrule Roe v. Wade, hold all forms of affirmative action unconstitutional, and to further erode the protections of criminal defendants, I fear this term will seem restrained.
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law; firstname.lastname@example.org.