Jurisprudence

How Far Will the Supreme Court’s Conservatives Go in Dismantling Anthony Kennedy’s Legacy?

Kavanaugh with a wide grin as Kennedy is a bit blurry.
Brett Kavanaugh at his swearing-in ceremony to replace retiring Justice Anthony Kennedy at the White House on Oct. 8, 2018. Brendan Smialowski/Getty Images

When the Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization in June—overruling Roe v. Wade and rolling back the constitutional right to access abortion—one thing was clear: A big part of Justice Anthony Kennedy’s legacy had just been dismantled. And as a new Supreme Court term is about to begin, many other remnants of Kennedy’s jurisprudence are on the chopping block. The court this term has on its docket huge cases on issues such as affirmative action, LGBTQ equality, voting rights, and the environment. All of these issues were ones on which Kennedy’s vote was often key, and all of these cases now offer the court’s conservative supermajority a chance to move the law radically to the right of where Kennedy had helped place it, as happened in Dobbs. Whether they choose to do so will depend on their willingness to jettison not only Supreme Court precedent, but also constitutional text and history.

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Perhaps the most high-profile cases on the court’s docket this term are SFFA v. Harvard and SFFA v. University of North Carolina. In these, the court is being asked to consider whether the use of race as part of a holistic university admissions process violates the 14th Amendment’s equal protection clause. Just six years ago, the court confronted this very question and held that the affirmative action policy of the University of Texas–Austin was constitutional. But in that case, Kennedy provided the critical fifth vote.

What will happen now that he and the late progressive jurist Ruth Bader Ginsburg are no longer on the court, having been replaced by conservative justices Brett Kavanaugh and Amy Coney Barrett? The answer to this question should be simple. The history of the 14th Amendment makes clear that there’s no constitutional ban on the use of race by the government; indeed, the Framers of the 14th Amendment rejected proposals to prohibit any and all use of racial classifications by the government, and contemporaneous with the 14th Amendment’s enactment, the Reconstruction Congress enacted a long list of race-conscious legislation intended to ensure equality of opportunity to all persons regardless of race. Indeed, as my organization put it in an amicus brief we filed in the case, the Framers of the 14th Amendment were the “originators of affirmative action.” If the court’s self-declared originalists actually adhere to the text and history of the Constitution, they should have no choice but to follow Kennedy’s example and uphold affirmative action.

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The affirmative action cases aren’t the only cases on this term’s docket that present the court with the opportunity to consider a question it confronted just a few years ago and potentially turn back Kennedy’s position on an issue. In a case called 303 Creative LLC v. Elenis, the court will be considering whether the Colorado public accommodations law, which requires businesses to offer the same services to same-sex couples that they offer to different-sex couples, violates the First Amendment. In Elenis, a website design company does not want to offer wedding website design services to same-sex couples, as the Colorado law requires. Four years ago, in a case called Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, a cake bakery raised the same objection to the Colorado law, saying that it did not want to have to bake cakes for weddings of same-sex couples.

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In Masterpiece, the court ruled narrowly for the baker, and Kennedy rejected a sweeping understanding of the First Amendment that would create a license to discriminate. As Kennedy explained, the “general rule” is that “religious and philosophical objections … do not allow business owners … to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” The court should reach the same conclusion now because the First Amendment does not give—and has never been understood to give—commercial businesses the right to violate generally applicable public accommodations laws that prohibit discrimination. But will it?

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There are also significant voting rights cases on the court’s docket this term. In one of them, a case called Moore v. Harper, the court will be considering the so-called independent state legislature theory. Under this fringe theory, state legislatures are the only state bodies that can regulate the mechanics of congressional and presidential elections, and therefore state courts cannot intervene to constrain state legislatures and enforce state voting rights protections. If adopted by the court, the independent state legislature theory could endanger voting rights across the country. This should be an easy case under both the text and history of the elections clause and also under a 2015 Supreme Court case in which Kennedy provided the key fifth vote to hold that Arizona could use an independent redistricting commission (rather than its state legislature) to draw congressional district lines. But some of the court’s current conservatives have suggested that they may embrace the independent state legislature theory when the court hears this case this term, again rejecting Kennedy’s views.

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Finally, one of the cases the court will hear on the very first day of the new term presents an important question about the Clean Water Act and, specifically, the proper test for determining whether wetlands qualify as “navigable waters” within the meaning of the act and are thus covered by it. The lower court concluded that the wetlands at issue in this case were covered by the Clean Water Act, applying a test set forth in a concurring opinion in a case called Rapanos v. United States. It won’t be difficult at this point to guess who wrote that opinion: Kennedy. Whether the court adopts that test, or a more restrictive test that limits the act’s coverage, could have major consequences for the health of our nation’s waters. As the United States pointed out in its brief in the case, a decision leaving “those wetlands unprotected would thwart the [Clean Water Act]’s comprehensive scheme and seriously compromise its protection of traditional navigable waters.”

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When Kennedy announced his retirement four years ago, it was widely understood that his replacement by a new justice, appointed by President Donald Trump, would usher in a new era at the court. And with Ginsburg’s death just two years later, it became possible for a conservative supermajority on the court to usher in even more radical change, even more quickly. We saw that last term in Dobbs, and we may see it again this year in issue after issue on which Kennedy’s vote proved key. In each of these cases, the text and history of the Constitution and the relevant laws can save us—but only if a majority of the court’s current justices are willing to follow them.

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