During his tenure on the nation’s highest court, Justice Anthony Kennedy was certainly nothing close to liberal. Even his fabled credentials as a “swing” justice have been burnished a bit beyond his actual court work. In every 5-4 decision this term that saw liberal justices Sotomayor, Ginsburg, Breyer, and Kagan united in dissent, Kennedy has provided the deciding vote for conservatives each time. He’s been a major voice or deciding vote in some of the cases that have been the biggest recent boons to the GOP cause, from Citizens United to Shelby County v. Holder. In the last twenty years of conservative dominance over multiple branches of governments at the federal and state levels, Kennedy’s name will be mentioned in the ranks of the victors.
Yet, his idiosyncrasies, and the cases where he diverged from conservative orthodoxy provided real hope for advocates on the left. With his retirement now imminent, those hopes are all but dashed. In the jurisprudence developed on racial justice and civil rights in the five decades since the close of the civil-rights era, Kennedy was enough of a wildcard to ensure that the Court often affirmed and protected core civil-rights victories, even as mainstream conservatism turned squarely against them. But now, the winds of change are blowing. The post-Kennedy Court is primed to see some potentially paradigm-shifting cases on race and racial justice in the near future.
The changes will likely come the soonest in the realm of voting rights, where Kennedy has been engaged in an intricate dance at the leading edge of legal arguments. One of the last court decisions in his last term came in the Gill v. Whitford challenge to potential partisan gerrymanders in Wisconsin’s state legislative maps. In that case, Democratic plaintiffs alleged that GOP-drawn maps created an unlawful partisan advantage, one where Republicans could fail to win the majority of total assembly votes and still capture control of the legislature. The case was anticipated as a potential landmark decision, one in which Kennedy’s career of legal interpretation has been critical.
The Court has never formally ruled on the merits of a challenge of gerrymandering on the basis of political, rather than racial, advantage—indeed, it still hasn’t, since Gill v. Whitford was remanded. Influential conservative minds like Antonin Scalia have been loathe to ever consider potential partisan gerrymanders, since while the Court does establish that politically-advantageous maps can be unconstitutional, it has been uncomfortable deciding when that line has been crossed. Kennedy, however, was instrumental in keeping the possibility alive. In his 2004 concurrence in Vieth v. Jubelirer, the outgoing justice essentially put out a call for compelling tests for partisan gerrymanders, keeping hope alive among voting-rights activists that one day they could find an argument that could convince the Court to rule against a partisan gerrymander.
They haven’t convinced the Court yet, and along with its sending Gill v. Whitford back down to lower courts, the Supreme Court has also sent two similar state partisan gerrymandering cases back down to lower courts, instructing plaintiffs to convince the courts of their standing and of concrete violations of individual freedoms by partisan gerrymandering. Kennedy won’t be around for the next round of cases, though, and that’s critical. While the four liberal justices concurred with the conservative justices in a unanimous decision in Whitford, their concurrence essentially created a roadmap for plaintiffs to finally convince courts of the illegality of partisan gerrymandering, including the necessity of arguments that biased maps run afoul of the First Amendment right to freedom of association, and the possible pairing of statewide harms with statewide remedies.
Without Kennedy on board, that roadmap is essentially moot. Whereas the Court’s maneuvering this term set up a cliffhanger on the idea of partisan gerrymandering, the next term was supposed to be the series finale. And the verdict on partisan gerrymandering matters deeply to the near future of political mapmaking.
After the 2013 Shelby County v. Holder decision defanged federal oversight of state elections laws, amid a concerted conservative effort to wrest control of political redistricting and use it to squeeze out as much GOP electoral advantage as possible, federal courts have regularly and relatively easily struck down several racial gerrymanders. But as redistricting has become more sophisticated and as partisanship has become more racially polarized, partisan gerrymandering has emerged as an option for engineering political advantages—even, as Justice Sonia Sotomayor notes, when those advantages are still essentially racial in nature. Indeed, the partisan gerrymandering cases from North Carolina that the Supreme Court recently sent back to lower courts came from jilted Republicans after the Court struck down their original racial gerrymanders created in 2011.
But more changes are afoot in the world of redistricting, and in voting rights more generally. This week, the Court upheld the vast majority of federal and state districts in Texas that had been struck down as racial gerrymanders by a lower court. The Court’s decision is some of the most important judicial language on voting rights in the post-Shelby County era.
In the decision, Justice Samuel Alito wrote that the racial prejudices of the state legislature and its documented history of racial gerrymandering were basically irrelevant in ongoing monitoring of their mapmaking, declaring the “good faith of [the] state legislature must be presumed.” The decision means that the Court will likely take a much more hands-off approach to voting-rights enforcement, and even more so with a more conservative majority. Perhaps more troubling to voting-rights activists, Justice Clarence Thomas’s concurrence expressed the opinion that the main enforcement portion of the Voting Rights Act doesn’t apply to redistricting at all, a view now shared by Justice Neil Gorsuch. While Alito and Chief Justice John Roberts have not espoused this rather extreme legal view, a third potential arch-conservative judge in the extreme camp would tip the scales in its favor within the conservative bloc.
Beyond the reckoning that appears due for the Voting Rights Act over the coming years, Kennedy’s replacement will step into several other civil-rights battles that seem to have become newly prominent and critical in today’s age. Kennedy hasn’t exactly been a friend to Affirmative Action over the years, but his surprise move to side with the majority when a shorthanded Court decided in favor of the University of Texas in the Fisher v. Texas case has kept race-conscious decision-making in education on life support. Indeed, that decision basically stopped the bleeding after the Court made numerous, consecutive decisions against affirmative action in education and employment. Whoever fills Kennedy’s robes will likely be prone to no such surprise moves.
Kennedy also figured to be a critical figure in the national conversation around America’s punitive criminal-justice system, and the deep racial disparities it engenders—especially now that the White House and the Justice Department have abandoned the idea of meaningful reform altogether. For years, Kennedy has voiced the slow moderation of some conservative views on criminal justice, has become a corrections-systems reformer, and has critiqued sharply Congress’s failure to pass sentencing reform laws. In a sense, he’s been one of the key faces of a growing bipartisan movement. To the extent that justices do provide partisan and philosophical leadership outside of their roles in the Court, it’s simply impossible to envision a Trump choice being a national leader on any kind of moderation of criminal-justice policies.
That might be even more pronounced inside the courtroom. Kennedy hasn’t been a criminal-justice crusader in court decisions, often sparring with liberal colleagues on the use of the Eighth Amendment banning cruel and unusual punishments, and outlawing excessive bail. But in the past decade, Kennedy has bucked his conservative colleagues, even authoring influential decisions in concert with the liberal justices on prison reform and the death penalty. The Eighth Amendment has been invoked often by Kennedy and the four liberal justices as a legal weapon in the nation’s highest court in order to curb the most draconian impulses of the criminal-justice system. Without Kennedy, it’s a pretty safe that that won’t happen again any time soon.
The upshot of Kennedy’s exit is that it looks to firmly solidify the disposition of the Court, even as it faces a slate of challenges that could upend civil-rights protections for minorities that have functioned as law for decades. Chief Justice Roberts has been a leader in a multi-front war against the Voting Rights Act that has been at the forefront of conservative intellectualism for years. Kennedy wasn’t a common foil in that project, but his legal writing and focus on statutory language have given voter-rights activists a pathway to the Court, and have been much less extremist than the opinions of Alito, Thomas, and Gorsuch.
With that conservative movement still coordinating a mass of gerrymandering, voter ID, and suppression cases that will come before the Court in the upcoming years, it’s possible that Kennedy’s retirement could hasten what appears to be the imminent collapse of much of the federal enforcement apparatus. The announcement makes Sotomayor’s warning that under recent court decisions, minorities will have “to be even more proactive and vigilant in holding their States accountable,” even more prescient.
But across different domains of civil rights and racial justice, Kennedy probably won’t be replaced by a justice content to remain an anonymous face of a newly-solidified conservative majority. Like Gorsuch, it’s likely that Trump’s second Supreme Court pick will be a Trumpian bomb-thrower, a radical who would rather see the Voting Rights Act, criminal-justice reform, and affirmative action demolished rather than slowly denuded over time.
If Trump—a president who has explicitly endorsed police brutality, who has harbored incoherent fantasies of mass fraudulent voting, and for whom the Supreme Court just upheld a travel ban clearly rooted in anti-Muslim sentiment—picks a candidate remotely like himself in either temperament or worldview, the emergent civil-rights threat is not that said candidate will necessarily join Roberts in his long-running campaign for a post-racial national order, but that the replacement will create with Thomas and Gorsuch an insurgency within the Court. If their jurisprudence is the model, anything is possible. Anything, that is, except the continuation of the civil-rights era, which now seems all but finished.