Replacing Justice Kennedy: Why Roe Won’t Be (Formally) Overruled, Same-Sex Marriage Rights Won’t Be Undone, and Affirmative Action Won’t Be Terminated, but Electoral Reform Could Suffer Greatly


It looks like Justice Anthony Kennedy will be replaced by one of his former clerks, DC Circuit Judge Brett Kavanaugh. Judge Kavanaugh is, to my mind, the most qualified of a quite strong group of four super-finalists from which President Trump was apparently choosing. (Full disclosure: Judge Kavanaugh and I overlapped in law school, although the court in which we probably saw the most of each other was the basketball court.) Whether Trump’s pick was Judge Kavanaugh or another finalist, there has been broad agreement that Justice Kennedy’s retirement from the Supreme Court will no doubt change the institution. And I think that assessment is true in some respects. The last justice to be appointed by President Ronald Reagan, Kennedy ascended from a Republican party that is very different from the one that is replacing him. Kennedy was, of course, the Court’s fulcrum—its proverbial swing justice, usually joining the conservatives but sometimes siding with the liberals. He was also the Court’s consummate gentleman, always treating his colleagues in the judiciary as well as the lawyers who appeared before him with respect, civility, and politeness. To be sure, there are plenty of commentators and analysts (along all parts of the ideological spectrum) who disparaged not only some of his votes but also the way he explained them. Many of Kennedy’s biggest rulings derived from the idea that government actions cannot be grounded in hatred or animus towards individuals or groups. Though critics found his invocation of the need to respect the dignity and personhood of all individuals to be vague and selective, these ideas were central to much of his jurisprudential identity. Even though Kennedy disappointed many observers by voting to allow President Trump’s so-called travel ban—and some journalists have speculated about how Trump cultivated a personal relationship with him over the past few years—Kennedy’s separate writing in that case sought to distance himself, in style and substance, from the president whose executive order he felt institutionally required to uphold.

Undoubtedly, the most important discussion of Kennedy’s legacy—and of the effect his departure will have on American law—concerns particular areas of law in which Kennedy appeared to be a brake, especially over the last dozen years, on the impulses and desires of the four justices considered to be more consistently conservative than he was. Assuming that Justice Kavanaugh turns out to be somewhat similar in substance to the last two Republican appointees—Justices Alito and Gorsuch—Chief Justice Roberts, especially since he tends often to focus as much on past Court precedent as first principles of constitutional meaning, will become the new swing justice on the Court. The “CJ” may also be the “key J,” something that has not been true on the Court for quite some time.

What might that mean? Let’s dig into the details a bit more. When we do, we may see that there will likely be significant—but not always revolutionary—change.

The Conservative Baseline From Which We Start

It’s important to start by remembering that Kennedy’s voting pattern was, generally speaking, conservative. He joined conservatives on many key issues not just in the business arena, but also concerning the scope of congressional power under both the Commerce Clause in the famous 2012 Obamacare case, for example, and, in a huge 2013 case gutting the Voting Rights Act, the Reconstruction Amendments. He also joined the conservative wing in campaign finance cases dealing with private contributions and public finance, in Second Amendment cases, in criminal law and criminal procedure cases, and in cases protecting conservative speech, like the 2000 case upholding the Boy Scouts’ right to exclude gays; the case last month involving the Colorado baker who didn’t want to create a same-sex wedding cake; and the case a few weeks ago of the Illinois state employee who didn’t want to fund the public-sector union that represented him.

Even on abortion, Kennedy voted somewhat conservatively—to uphold bans on so-called “partial birth” abortions, and to uphold significant abortion restrictions in the blockbuster Planned Parenthood v. Casey ruling in 1992 that nominally preserved but explicitly diluted the right recognized in Roe v. Wade. By post-New Deal standards, Kennedy was quite a conservative jurist.

Yet Kennedy was responsible for some important judicial victories for gays and lesbians. In a famous 1996 Colorado case, he authored a 6–3 ruling striking down a law that singled out gays, lesbians, and bisexuals and denied them protection of the law. In 2003, he wrote for a five-justice bloc to invalidate Texas’s criminalization of gay and lesbian sexual activity. And, most famously, in Obergefell v. Hodges in 2015, he wrote the 5–4 ruling holding that same-sex couples had the same federal constitutional right to marry enjoyed by straight couples.

And near the end of his career, Kennedy surprised people by joining the liberal bloc in 5–4 rulings to uphold race-based university affirmative action and the authority of voters to use direct democracy to create independent commissions to draw state and federal legislative districts.

Areas to Watch and Inquire About

The three areas that will most often be mentioned as to which Kennedy’s departure could be significant are abortion rights, same-sex marriage rights, and affirmative action. A few thoughts about each of them:


As evidenced by the 5–3 ruling in Whole Woman’s Health v. Hellerstedt just two years ago, where Justice Kennedy joined the liberal four to strike down Texas laws that made it much harder for many poor and rural women to get abortions and Chief Justice Roberts dissented, the Chief has not been inclined to read Casey and its (in)famous “undue burden” test for judging abortion regulations (permitting them unless the burden they impose is “undue”) stringently. Although, as intimated above, Roberts often professes great respect for stare decisis, the flexible and indeterminate nature of the undue burden standard means that neither he, nor the Court, needs to overrule any cases to meaningfully liberate states to restrict abortions in relatively aggressive ways. It’s quite possible that the Chief (and Justices Alito, Gorsuch, and Kavanaugh, for that matter) would continue to uphold the Roe/Casey-based constitutional right to obtain a pre-viability abortion if someone has the resources and resolve to travel (even, where needed, to another state) to where such an abortion is available. Thus the Court may continue to invalidate the absolutely most aggressive state measures that seek to ban abortion outright from the point of conception. But many states will be able to put larger and larger obstacles in the way of women who—for class and geographical reasons—may not be able to overcome them. If only several of the country’s most anti-abortion states adopt such restrictions, a very large number of the nation’s poor and rural women will be adversely affected, even if the Casey regime (which could be described as Roe-lite) isn’t formally interred. At the end of the day, while many states will continue to liberally permit abortion (and even protect abortion rights under their own constitutions), there will be meaningful if incremental tightening on abortion access for many women in many parts of the nation, even without a wholesale abandonment of the Casey framework.

Same-Sex Marriage

Since the right of same-sex couples to marry on terms equal to those enjoyed by straight couples poses a binary question—either the right exists or it doesn’t—unless Chief Justice Roberts is willing (along with four others) to back away from his professed embrace of stare decisis and overturn Obergefell, then the right to marry for gay and lesbian couples may not be in jeopardy. Undoing the right to marriage equality would be particularly difficult because so many same-sex couples have gotten married in all the states in recent years, and also because even prior to Obergefell there was the unsolved problem of what to do when people who married in a state that sanctions same-sex marriage moved to a state that does not. These and other practical problems—putting aside Roberts’s views on the merits—would argue in favor of stare decisis here. But extensions of LGBT rights to areas beyond marriage—such as government employment—may indeed be halted because of Kennedy’s departure. And even in the realm of marriage, the Court may expand on this term’s Masterpiece Cakeshop v. Colorado Civil Rights Commission ruling by relying on the parts of the opinion discussing the expression inherent in certain facets of a wedding to confer conscience-based exemptions from anti-discrimination laws for individuals and small businesses that don’t want to provide goods and services to gay/lesbian nuptial celebrations.

Affirmative Action

Justice Kennedy’s vote had been with the conservative bloc in virtually every affirmative action case over the past two decades, including the University of Michigan Grutter v. Bollinger case in 2003, where O’Connor was the fifth vote joining the liberals and Kennedy was in dissent, until his surprising decision two years ago to uphold the University of Texas’s use of race in admissions in Fisher v. University of Texas. The three dissenting justices in that case would have struck down Texas’s plan—as they would have struck down Michigan’s plan and every other plan they have seen. But only Justice Thomas said he would have laid down an absolute rule against the use of race in admissions, period. (Justice Scalia may well have joined him, but he passed away before the decision issued, which accounted for the ruling being 5–3 rather than 5–4). The other two dissenters (Alito, joined by the Chief) argued that so-called strict scrutiny—which the Court since the mid-1990s has held applies to affirmative action—simply wasn’t satisfied by the University of Texas.

The key question in this realm, then, is how strict is strict scrutiny? As I’ve written in other venues, there is a vast difference between Thomas’s absolutely color-blind position and even a very rigorous understanding of strict scrutiny. (The analogy I used was the line in the movie The Princess Bride in which Billy Crystal’s Miracle Max character distinguished between “mostly dead” and “all dead.”) As long as the door remains ajar (under strict scrutiny), universities will continue to try to pass schemes that might survive challenge. The Court can play whack-a-mole by invalidating the relatively small number of programs it is able to review, but without a bright-line prohibition, the effect on the other thousands of educational institutions will be limited. (An analogy to the tension between the Court and the Ninth Circuit Court of Appeals comes to mind; many observers believe that some Ninth Circuit judges who disagree with many Supreme Court trends have over the years consciously failed to fully heed Supreme Court precedent, knowing that there are only so many cases each year in which the Court can slap them down.) In some ways, affirmative action presents the mirror image of the abortion setting: A few states can regulate abortion aggressively, and if their regulations are upheld millions of women will be affected. The Court can strike down a few affirmative action programs under strict scrutiny (affecting a small number of students at those schools), but because there are so many more schools than there are states and because each school’s plan is unique, the coercive signal the Court sends in each affirmative action case will have a far more limited reach. To be sure, opponents of affirmative action might ramp up their litigation against it, perhaps especially at several elite institutions to try to send a message. But it is not always easy to find good litigants, and in any event most other schools would still be able to argue that their programs are factually distinguishable, so that access of underrepresented groups to higher education nationally might dip a bit, but not fall dramatically in practice. It is possible over time that other conservative justices, including the Chief and the newer members, may gravitate towards Thomas’s absolutist stance, but that will take many years I would expect.

Electoral Reform

The last but certainly not least important area I want to mention is one that might get shorter shrift in the media and the Senate, and that is electoral reform. To be sure, Kennedy voted with the conservative block in Shelby County v. Holder (invalidating key provisions of the Voting Rights Act), Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (imposing barriers to the creation of public campaign finance regimes), and McCutcheon v. Federal Election Commission (striking down aggregate contributions limits), such that most people might think the conservative status quo will simply continue. Even in the realm of judicial policing of partisan gerrymandering, Kennedy had never joined the liberal justices; some analysts thought that his vote might be winnable this year (although I don’t really know why they believed that), but he never took the plunge. So while none of these areas is likely to move to the left, they’re not likely to move farther to the right either.

But there was one big recent electoral reform case three years ago—Arizona State Legislature v. Arizona Independent Redistricting Commission (AIRC)—in which Kennedy joined the four liberal voices to uphold the power of state electorates to use the initiative to take districting away from elected officials who are prone to gerrymandering. I wrote extensively, including here and here, about this case (which I believe was rightly decided), and talked about how the case opened the door to the use of direct democracy not just in congressional election reform but also reform in presidential election (electoral college) processes, which also reflect problematic gerrymandering, albeit across rather than within states. Perhaps Chief Justice Roberts (or one of the two newest justices) will feel bound by AIRC case as a matter of precedent, but that remains to be seen.

The Chief Justice wrote one his most impassioned (if, to my mind, mistaken, as a matter of constitutional, text, public meaning, history, and structure) dissents in that case. And importantly, unlike many dissents, he did not rely too much on the majority having misinterpreted precedent. Rather, he argued extensively from his understandings of first principles of text, history, and structure of the Constitution. This case illustrates how a dissent that focused on how the majority misread or ignored precedent is of little utility going forward. Even if the dissent is correct, its argument loses force the day the case is issued, because there is now a new precedent on the books! Arguments about precedent are thus rhetorically good for one day/case only. It is understandable that lawyers often make them—they are concerned only with winning the case at hand. But a dissenting justice has lost the case at hand, and should be thinking about winning cases down the road much more than scoring debating points against the majority or trying to make its members look bad.

It is also worth noting that in the AIRC case, there was a federal statutory basis for the majority’s holding. But that statutory basis would be limited to congressional election reform and not presidential election reform. Moreover, Chief Justice Roberts not only expressed disagreement with the majority’s reading of the statute (a question on which he might feel constrained by stare decisis, a doctrine which always operates more robustly in the statutory context), but he (again, unpersuasively to my mind) argued that the majority’s reading of the statute rendered the statute itself unconstitutional.

So there is some chance that the AIRC case could get revisited and either read very narrowly or overruled altogether. And in any event, even if that case survives, the message it sends about the use of direct democracy to circumvent partisan entrenchment by elected representatives may be blunted. That could be significant, since direct appeal to the voters could be thought of as a safety valve if contribution limitations and public finance schemes are rejected, and the Court feels it can’t itself police partisan gerrymandering.

Should that happen, the possibility that state courts, using state constitutions, can police partisan gerrymandering (even as to congressional districting) as happened in Pennsylvania last year (a situation the US Supreme Court rightly stayed out of), would take on even greater importance.

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