July 1, 2018

Did Anthony Kennedy Just Destroy His Own Legacy?



America is plainly more precarious than it was when he took his seat.


By Michael Waldman, J.D. / 06.28.2018
President
Brennan Center for Justice


Justice Kennedy overall leaves a mixed legacy. His rulings on marriage equality and LGBT rights are properly considered landmarks. But when it comes to the state of American democracy, Kennedy’s record is consequential and corrosive. American democracy is plainly weaker than it was when he took his seat, thanks to the times he ruled—and the times he failed to act.

Start with campaign finance. Kennedy authored Citizens United. He transformed the case from a technical ruling on election regulation to a blockbuster that upended a century of law. Every gauzy word of it bears his imprint. “The censorship we now confront is vast in its reach,” he warned. “The government has muffled the voices that best represent the most significant segments of the economy.” In his dissent, John Paul Stevens responded, “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”

It’s a fashionable legal take to say that Citizens United did not really matter. It just followed on Buckley v. Valeo and other misguided opinions. Major corporations did not leap to splurge directly on campaign ads. But overall, it was a disaster. It signaled a nearly total deregulation of campaign finance in the United States. The lower court rulings authorizing SuperPACs (such as Speech Now) flowed directly from it. Today, campaigns are increasingly dominated by undisclosed dark money, officeholders spend shocking amounts of time raising funds, and hostile foreign powers realize that our loophole-filled laws offer ample opportunity for mischief. Most serious presidential candidates must first find a billionaire buddy to bankroll a race (or be a billionaire themselves). Only now are we seeing Citizens United’s true costs in corruption and collapse of public trust.

On campaign finance, at least, Kennedy displayed the courage of his convictions. On voting rights cases, he simply went along with other conservatives.

On gerrymandering, it was not his decisions but his indecision that undermined democracy. Here, he knew what was wrong, knew the court could do something about it, and then decided to do nothing. He opined that partisan gerrymandering could be unconstitutional with the right standard, then dithered for over a decade. This term, the court took two major cases on extreme partisan gerrymandering, recognizing that the practice had grown far worse with technology. At oral argument, especially in his sharp queries in the Whitford case from Wisconsin, Kennedy made clear he understood the stakes. The stars at last aligned for a major ruling, one that would have been hailed by citizens of all political views.

Then, an epic judicial shrug. The justices sent three gerrymandering cases down to lower courts for adjustment based on standing. The rulings might have offered a path for success, had Kennedy remained on the bench. Now, from his perspective at least, they are a version of the famous New Yorker cartoon: “Tuesday’s out. How’s never—does never work for you?”

Now, we can expect one of history’s great nomination battles. It may make Bork or Brandeis or Carswell and Haynesworth look like popgun wars. Elections may turn on the debate. Kennedy’s record should remind us that—taking nothing away from other major issues of individual freedom in the court’s hands—the state of our democracy is at stake. On this, at least, I hope Kennedy’s successor does a better job than he did.


Originally published by the Brennan Center for Justice under a Creative Commons Attribution-No Derivs-NonCommercial license.

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