Although “The Anthony Kennedy Show” has now been superseded by what will surely be an entertaining but entirely predictable renewal of “The Confirmation Show: Now Even More Evasive,” it is still valuable to consider Justice Kennedy’s hand in the Supreme Court’s hard-right turn that paid off so handsomely for conservative activists this year.
In some ways, the most perversely interesting opinion that the Court’s Conservative Five handed down last month was in the term’s final case, Janus v. AFSCME, in which they delivered a body blow to workers by further undermining the finances of labor unions. Although the Muslim Travel Ban decision will, as I wrote in my most recent Verdict column, be remembered as this generation’s Korematsu and has unalterably damaged Kennedy’s standing in history, Janus most perfectly crystallized a big part of what the conservatives have been doing for the past several years.
In particular, the Conservative Five have been recklessly expanding the idea that the Constitution protects (a certain group of) people from the apparently horrifying notion that they might be guilty by association with views that they find unpleasant. Americans who are politically conservative, and especially Christian conservatives, have been revealed to be the ultimate snowflakes, and their champions on the Court have ridden to the rescue to prevent them from having to face the fact that they live (for now, in any case) in a pluralistic society.
To a degree that I never thought possible, the conservative movement—in Congress, among its adherents, and especially in the courts—has decided that people like them should be able to opt out of anything that makes them uncomfortable. It is a truly strange turn for a movement that in other contexts emphasizes brave self-reliance and ridicules people who supposedly wallow in victimhood.
A Bit More About the Kennedy Retirement
Before continuing, I should take a moment to expand on a claim that I made in last week’s Verdict column. There, and in a related column the next day, I credited a report in The New York Times that described a “quiet campaign” by White House advisors to convince Kennedy to retire. In particular, that report claimed that Trump’s people had both cajoled and scared Kennedy with the idea that Democrats might retake the Senate in November, and would that not be horrible to Kennedy’s legacy?
[For those readers who did not read my two columns from last week, I should reemphasize that nothing I say here about Justice Kennedy is based on any inside knowledge about his thinking. I possess no such knowledge. My opinions here are, as always, mine and mine alone.]
Frequent readers of my columns will recall that I have become extremely critical of news reporters, and I frequently highlight situations in which journalists blithely make assertions that I know (and they should know) to be wrong. I should, therefore, not have been so quick to buy the narrative in which Kennedy was sweet-talked into retiring with (unenforceable) assurances that his legacy would be protected by Trump’s choice of his successor.
I am not saying that I know that narrative to be untrue, but as I have thought about it, the story has begun to sound like another instance in which a reporter’s conclusions move far beyond the knowable facts. My surprise at Kennedy appearing to be gullible should have led me to suspect that what I was reading was possibly untrue.
But the interesting point is that the alternative is in some ways worse for Kennedy. If he really cared about his most important work not being undone by his successor, then he would most definitely not have been willing to retire now—unless, that is, he views his votes and opinions on gay rights and women’s bodily integrity to be unimportant parts of his legacy.
Now it is true that Kennedy might simply have decided that it was time to quit for his own personal reasons. One can reasonably argue: “Although I worry for the Republic, I do not begrudge Justice Kennedy his retirement. All of us make the decision whether and when to retire based on a variety of factors, some of them personal.”
Quite so, but I cannot help but think that 81 years of age is not too old to decide to continue in a job with no heavy lifting, at least until it is clear whether Trump’s destruction of constitutional democracy will be stopped at the ballot box. And although the time before I become an octogenarian is still measured in decades, giving me no direct experience in such matters, I can at least invoke then-95-year-old Carl Reiner’s description—in an op-ed last summer that was written as an open plea to Justice Kennedy not to retire—of the joys of working late in life.
All of which means that, if Justice Kennedy was not schmoozed into retirement, he was even more responsible for making the choice that has put prominent parts of his own legacy on the chopping block. It is now not a question of whether his most famous work will be overruled, but when that will happen. And he had to know that when he decided to quit.
The Janus Case and the Real Kennedy Jurisprudence
Although people have understandably focused on Justice Kennedy’s very rare liberal votes, the simple fact is that he was until the very end a committed movement conservative. That was true, moreover, even before the 2017–18 term’s run of shockingly unprincipled decisions onto which Kennedy enthusiastically signed.
Perhaps no case merits the word “enthusiastically” more than the Janus case. In a column written shortly after that case was argued this past spring, New York Times columnist (and former Supreme Court reporter) Linda Greenhouse described with obvious dismay the gleeful aggressiveness with which Justices Kennedy and Alito attacked the unions’ position.
Lest one think I am overstating Greenhouse’s position, it is only necessary to point out that she described as “a major mystery” the question of “how Justices Alito and Kennedy, with all their years of experience, could have permitted their intense dislike of organized labor to strip them of judicious inhibition and drive them to act as advocates and even something very close to bullies.”
Something very close to bullies. Allow that description to sink in a bit. She then added that, when she read the transcript, it “was so hot that it almost jumped out of my hands.” Even those who disagree with Greenhouse on substantive matters of law could never accuse her of being prone to exaggeration. If Kennedy were the moderate that he is now lionized as being, it would not have been possible for anyone to write what Greenhouse wrote.
But that is, perhaps, merely an argument about style. (Actually, it is not, but I will allow for that possibility for the moment.) More importantly, what was Kennedy’s self-styled killer argument? Greenhouse provides additional context, but here is the relevant exchange between a hyper-hostile Kennedy and the unions’ lawyer:
Justice Kennedy: “I’m asking you whether or not in your view, if you do not prevail in this case, the unions will have less political influence. Yes or no?”
Mr. Frederick: “Yes, they will have less political influence.”
“Isn’t that the end of this case?” Justice Kennedy said.
It is hardly surprising that Kennedy joined Justice Alito’s majority opinion in Janus, but it is that short exchange that I think captures both Kennedy’s right-wing fundamentalism and the direction in which the Court would have continued to move even if he had chosen not to retire.
What, after all, is Kennedy saying there? The existing precedent—which, notwithstanding all claims to judicial modesty, the Conservative Five were happy to sweep aside, even though state and local governments had told the Court that they actually preferred the status quo ante—said that a person who chooses to work for a government cannot be forced to contribute money that would support the political activities of the union. If a person does not want to help their union support liberal causes, the person can opt out.
The other half of the now-displaced rule, however, was that anyone who benefited from the negotiated outcomes made possible by the union could be required to contribute dues to support such negotiations and ancillary activities. You might not like unions as a political matter, but if you are in a job where you are advantaged by a union, you must not be allowed to take a free ride.
In a column discussing Janus, Michael Dorf described Alito’s opinion as turning union membership into “the new broccoli,” wryly pointing out a logical connection between the Janus majority’s argument and the same five justices’ argument in the first Affordable Care Act case that requiring people to buy health insurance was no different from forcing them to buy (and implicitly then forcing them to eat) broccoli. As Dorf explains, the argument does not work in either context.
Kennedy’s objection during oral argument in Janus, however, was at least of a different degree if not entirely a different kind from Alito’s eventual written opinion. Kennedy was saying that a person who does not like unions as a political matter cannot be required to contribute to the non-political work of the union, because doing so allows the union to continue to exist, which the person does not like as a political matter.
In other words, Kennedy was saying that there simply is no category that one can call “non-political union activity,” because some people believe as a political matter that unions should not even be legal in the first place. He is saying that a person can argue, and the Constitution must enable, this statement: “I cannot be forced to be part of something, even indirectly, that I disagree with as a matter of political opinion—even the part of it that helps me.”
That argument, in turn, immediately brings to mind the infamous Hobby Lobby decision (on which Kennedy was again a vote in the majority, notwithstanding his effort in a concurring opinion to disclaim the extreme precedent that the case set), in which the Court’s conservatives held that a for-profit company could not be “compelled” to participate in something that its religious owners found upsetting, which in that case was to provide health insurance coverage that included coverage for birth control.
In turn, Hobby Lobby inevitably led to claims that the very act of opting out of such coverage was itself an immoral act that the government could not compel, as well as the argument that bubbled up to the Court this term in the Masterpiece Cakeshop case. Although the Conservative Five decided there that two stray statements by state employees were proof of the state government’s hostility to religion, the underlying argument was that a business engaged in trade with the public could discriminate against certain members of that public whenever it felt any religious objections.
The Court’s right wing, and the legal industry that sends those cases up through the legal system, argued that in a Hobby Lobby-like situation a business would be “complicit in immorality” by being required to provide health care coverage that could eventually be used by employees to obtain birth control. Yet they have never been able to distinguish between that situation and the instances in which an employee uses other parts of her or his compensation (such as, maybe, salary?) to obtain those same “immoral” things.
Indeed, because the government requires that employees receive a minimum wage, it is requiring that employers provide employees with the means by which they might commit sins—apparently making the employer complicit in immorality. Is the minimum wage itself a violation of the Free Exercise Clause? I no longer imagine that even absurd questions like that one are rhetorical.
The ultimate point, as I noted at the beginning of this column, is that the Court—with Justice Kennedy on board with differing degrees of enthusiasm—has decided that some people are so fragile that any connection, even several degrees removed from something with which they disagree, is simply unacceptable.
In the hands of Justice Kennedy and his colleagues (and surely his successor as well), the Constitution is thus not helpful when a president expresses open hostility to Muslims and then acts to harm many of them, but that same august document is called upon to justify action when a conservative American says that he does not want to be somehow indirectly connected with sexual liberation or collective bargaining.
We can never know how far this line of reasoning would have gone if Anthony Kennedy had stayed on, but we do know that he helped the Court create a doctrine of deference to the tender feelings of a favored subset of the population that just happens to vote for Republicans. And we will soon see what an even more conservative justice will do to bring all of this to fruition.