This is the first in a series of articles about how Justice Anthony Kennedy’s successor will change specific areas of the law.
Justice Anthony Kennedy, who announced his retirement from the Supreme Court last week, was certainly the “swing justice” in key cases on major issues from abortion to gay rights. But when it came to election law, Justice Kennedy didn’t swing: He consistently sided with conservatives and the Republican Party on the most important cases of the day. Still, I fully expect issues from voting rights to campaign finance to get far worse when President Trump appoints Kennedy’s successor in the mold of Justice Antonin Scalia.
Kennedy was the author or in the majority in three of the worst election law cases the court decided in the last two generations: Bush v. Gore (2000), Citizens United v. FEC (2010), and Shelby County v. Holder (2013). It’s worth looking back at Kennedy’s bad voting rights decisions—and how much worse they could have been—when thinking about his replacement.
In Bush v. Gore, the Supreme Court ended the recount of Florida votes ordered by the state supreme court and effectively handed the presidential election of 2000 to Republican George W. Bush on a 5–4 vote. It was not the finest hour for the Supreme Court. Kennedy was widely seen as the co-author—with Justice Sandra Day O’Connor—of the unsigned per curiam opinion in that case, which endorsed an expansive equal protection theory usually embraced in other situations by liberals. Kennedy’s reasoning was poorly theorized, but what was most troubling was the 5–4 decision to reject a remand of the case so that the lower courts could conduct a recount under the new equal protection standards favored by Kennedy. If these constitutional rights were so important, a further delay in time would have been justified.
Kennedy, however, at least did not join in the Bush v. Gore concurrence by then–Chief Justice William Rehnquist, which was joined by Justices Scalia and Clarence Thomas. That opinion, had it been the majority one, would have given state legislatures plenary power to set the rules for elections, even in violation of their own state constitutions and against the rulings of state supreme courts. Likewise, Kennedy sided with the liberals against a Chief Justice John Roberts dissent in a 2015 case from Arizona, which would have prevented voters from passing redistricting initiatives to take the power to draw congressional districts out of the hands of self-interested legislatures.
It’s entirely conceivable that the next justice may become part of a new majority, relying on the Rehnquist Bush v. Gore concurrence and Roberts’ dissent in the Arizona case, to hold that voters cannot use initiatives to establish fair redistricting commissions and nonpartisan election rules applicable to federal elections. Further, the court could hold it unconstitutional for state supreme courts to strike down partisan gerrymanders of congressional districts on state constitutional grounds. The Pennsylvania Supreme Court recently did so, with important national ramifications for control of Congress.
This is not the only area where a new justice might dramatically shift the court’s decisions. In Citizens United v. FEC, Kennedy and Scalia won a battle they had been fighting since the 1990 case Austin v. Michigan Chamber of Commerce. Justice Kennedy believed that campaign spending limits imposed on corporations and labor unions violated the First Amendment, and he described attempts to insure that great economic inequalities not be translated into great political inequalities as a form of “censorship.” Kennedy authored the 5–4 decision, and in other cases after Citizens United, such as the 2014 McCutcheon case, he signed on to opinions which may pave the way for courts to strike down additional limits, such as limits applied on contributions directly to candidates. The next justice may join a new conservative majority in striking down limits on contributions directly to candidates.
But while Kennedy almost always voted to strike down campaign spending limits—the only exception being for foreign spending—he did not go so far as Thomas, who would hold that not only are all campaign contribution limits unconstitutional, laws requiring disclosure of campaign spending and contributions violate the First Amendment as well. Justices Samuel Alito and Neil Gorsuch have expressed some sympathy with this position, and the new Justice may be there too, leaving the decision about campaign disclosure in the hands of Chief Justice Roberts.
In Shelby County v. Holder, meanwhile, Kennedy signed on to an opinion by Roberts which killed off a key provision of the 1965 Voting Rights Act, the part which required states and localities with a history of racial discrimination in voting to get federal permission before changing any voting rules. The old law put the burden on these jurisdictions to show that any new law would not make protected minority voters worse off. The court created a new “equal sovereignty” theory to justify its 5–4 ruling, with assurances that other parts of the Voting Rights Act would provide ample protection from states engaging in discriminatory voting practices.
Just last week, in Abbott v. Perez, Kennedy signed on to a majority opinion rejecting attacks on Texas’s redistricting, demonstrating how hard it is to win voting cases after Shelby County. Kennedy did not take the most extreme position here, though. While he sided with the majority in placing the burden on discriminated against voters to prove harm—both as to intentional discrimination and discriminatory effects—he did not join the opinions of Thomas and Gorsuch that the Voting Rights Act provides no protection at all to claims of unfair redistricting. Nor did he sign on to earlier opinions with Thomas and Scalia indicating that additional key provisions of the act were unconstitutional. A future justice in the mold of Justice Scalia could vote to kill off what’s left of the act.
Further, there were some areas where Kennedy sided with the liberals to some degree. A new justice likely will not. First, consider his approach to partisan gerrymandering. Fourteen years ago, in Vieth v. Jubelirer, Kennedy stood alone on the question of reining in partisan gerrymandering. He rejected Scalia’s argument for the four other conservative justices that these cases present “nonjusticiable” questions that courts cannot solve. He rejected the four liberal dissenters’ positions that such standards already existed. And he called for additional development in the law, perhaps under the First Amendment, for separating permissible from impermissible consideration of partisanship in drawing district lines.
Fourteen years later, the issue came back to the court in this term’s Gill v. Whitford case. Although the issue was perfectly teed up for Kennedy, he passed once again, leaving the issue open to be decided by his successor. It was like Kennedy was out of gas and could not finally make a decision on what do to about a very difficult question. His successor, though, is likely to side with the court’s conservatives, rendering Kennedy’s open question about how such partisan gerrymandering might be curtailed by the courts a moot issue.
And Justice Kennedy, while voting with Chief Justice John Roberts and Justice John Paul Stevens to uphold Indiana’s tough voter identification law in 2008’s Crawford v. Marion County Election Board, did not sign on to Justice Scalia’s harsher opinion, which would have said that if such a law imposed few burdens on most voters, then those voters facing special burdens could not complain about that law.
In sum, Anthony Kennedy was not a friend of strong voting rights, but he was not a harsh conservative in the mold of Antonin Scalia. As I explained in my recent book on Scalia’s legacy, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, a court filled with Scalia acolytes—such as President Trump has promised the nation—is going to be a disaster for the cause of voting and democracy.
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