Thursday, June 28, 2018

Part I

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How Justice Anthony Kennedy became one of the most singularly important figures in Supreme Court history

June is always an important month for the United States Supreme Court but yesterday, June 27, 2018 will go down as one of the most historic days in the history of one of America’s most central institutions. The announcement came yesterday of the retirement of the Associate Justice Anthony M. Kennedy, one of the nine justices of the United States Supreme Court. That announcement came even as the court was ending its term for the current year and that announcement came as a political bombshell.

There are many reasons why that is true. After all, in this political context, any vacancy on the nation’s highest court is going to be controversial. But in order to understand why this particular retirement, a retirement effective the last day of July this year, is so important, we have to understand the singular role that has been played in the United States Supreme Court and in its recent history by Justice Anthony Kennedy.

Justice Kennedy was born in 1936. He joined the United States Supreme Court in 1988. How did Justice Kennedy go from a boy in California to being a justice of the United States Supreme Court? He was born to a lawyer. He later attended Stanford University and Harvard Law School. He then joined his own father’s law practice, eventually running that law practice. He also taught constitutional law. Then he was appointed to the federal judiciary, to the Federal Court of Appeals. There he was largely in obscurity in legal circles, being just one amongst other federal judges until a unique set of historical circumstances came amount, which eventually led to his nomination and confirmation as a justice of the United States Supreme Court.

When he ran for president in 1980, Ronald Reagan, the former governor of California, was very clear about what he was looking for as he thought about the Supreme Court of the United States. As President, he indicated he would be looking for justices who gave primary attention to the text and to the grammar of the United States Constitution. This was in the early days of Americans beginning to have a public conversation about two different schools related to the interpretation of the Constitution and role of the court. More progressivist jurists and legal scholars had been arguing for decades. This goes all the way back, by the way, to President Woodrow Wilson, that the text of the Constitution should not itself be binding. Rather, they developed the idea of the living Constitution. Out of the Constitution as an idea, an evolving and unfolding idea, they came up with an entire plethora of newly discovered rights, including what was declared to be a right to abortion.

On the other side, conservatives developed a school of constitutional interpretation they never thought would be necessary. That is, a school of interpretation which says that it is the very words and the intentions of those who are the authors of the document that should guide its interpretation. The very idea the strict constructionist or the textualist is, amazingly enough, the judges and others interpreters should be bound to the text and the authorial intention and to the very words of legislation passed by Congress.

Given the opportunity to nominate a new justice to the nation’s highest court after the retirement of Justice Lewis Powell, President Ronald Reagan turned to the most famous, or on the other side, the most infamous strict constructionist in American legal conversation. That man was a former federal judge named Robert Bork. But the confirmation hearings for Judge Robert Bork to be a Justice of the United States Supreme Court turned into one of the major moments of political and ideological transition in the United States. Most justices nominated to the nation’s highest court had sailed through the Senate. Not all of them succeeded, but those who did, the vast majority did so by very wide and general bipartisan margins. But that all changed with Robert Bork.

Bork’s ideas of textualism and strict constructionism, a conservative understanding of the Constitution and the role of the judges, was understood by those on the progressionist side to be a direct threat to their dominance of the court for the previous several decades. They decided to draw a line in the sand and that line was named Robert Bork. Eventually then, the democratic majority in the Senate was able to put an end to the nomination of Robert Bork. That left President Reagan with the responsibility to nominate yet another individual to the seat.

The next individual he nominated was another federal judge, in this case Judge Douglas Ginsberg. Again, a stellar record. Someone less controversial, far less published, and far less known when it came to the issues of the conservative versus progressionist divide on the court. But in the case of Douglas Ginsberg he was sidelined, not because of his constitutional philosophy, because back in that period in the late 1980s it became apparent that he would have to admit that as a young person, most importantly as a college student, he had used marijuana. At that point President Reagan, having to turn to a third nominee for the very same seat of the Supreme Court, turned to someone back in the state of California believed to be a safe choice. That man was Anthony Kennedy.

Over the last several decades there’s been a very discernible pattern. There have been presidents, most often conservative presidents, who have nominated judges, most often conservative judges and justices, who once confirmed have turned out as judges and justices to be a good deal less conservative than they were thought to be. As you’re thinking about those two rival schools of constitutional interpretation, there have been presidents who thought they were nominating strict constructionists and textualist who turn out to have nominated anything but. The most apparent example of this pattern has to do with President Ronald Reagan. Elected in 1980, President of the United States as both a conservative and a republican and elected upon assurances that he would appoint strict constructionist jurists and judges to the nation’s federal courts. But as time unfolded it gave President Reagan an opportunity to at least regret in part two of the nominations that he had made.

He nominated the first female Justice of the United States Supreme Court, Justice Sandra Day O’Connor, and then of course he nominated Anthony Kennedy. In both cases, but most particularly with Sandra Day O’Connor, he would appoint a judge who would often move in a direction and rule according to principles very different than what the president who nominated the judge had expected. This was true however, going all the way back to the 1950s when the then President of the United States, Dwight David Eisenhower, appointed Earl Warren, the former governor of California as Chief Justice of the United States. By the time Eisenhower ended his term, he considered his nomination of Warren as Chief Justice to be his gravest mistake.

As we’re thinking about connections and the ironies of history, it is important to recognize that one of the greatest boyhood influences on Anthony Kennedy was governor, and later Chief Justice, Earl Warren. But the reason the announcement of Justice Kennedy’s retirement yesterday sets the stage for raising the most basic questions about the direction of the court has to do with the fact that for most of the 31 terms Anthony Kennedy served on the Supreme Court, he served in the most instrumental way as a swing judge, as a swing vote, as a swing justice. In no less than 20 of the 31 terms Anthony Kennedy served as a Justice of the Supreme Court of the Unite States, he was either the justice who was most often the fifth vote in the most five-four decisions or he tied with Sandra Day O’Connor for the same title.

That’s why there have been those who have argued for the last 20 years or so that the most powerful individual in Washington DC is none other than Anthony Kennedy. It is because in so many of the most crucial cases facing the Supreme Court over the last three decades, his vote has been the decisive vote. That has meant that lawyers making their cases before the United States Supreme Court in so many of those cases have actually preached and argued effectively to an audience of one. That one? Justice Anthony Kennedy. Why? Because in the majority of the cases in which there would be a five-four decision, the fifth vote would have been Anthony Kennedy.

Christians thinking about the retirement of Anthony Kennedy, and thus the future of the court, Christians thinking about Anthony Kennedy and his role in history need to keep two particular issues in mind. Not because these have been the two issues that have consumed most of Justice Kennedy’s attention, but because they are two of the most contentious issues in the United States in which he has played the decisive role as the often absolutely decisive fifth vote. Those two issues are abortion and homosexuality.

When it comes to abortion, the stage was set in 1973 when the Supreme Court of the United States handed down the Roe v. Wade decision, that infamous decision that legalized abortion, effectively abortion on demand, in all 50 states. By the time President Reagan was nominated and elected as president in 1980, he was elected on the platform of reversing Roe v. Wade. He was elected by a wave of pro-life sentiment in the United States and the fact that many Christians were newly awakened to the reality of abortion. They also were newly awakened to the fact that that should be translated into their political responsibility and their vote.

History will record that the greatest opportunity to reverse Roe v. Wade by the Supreme Court came in the year 1992 in the case Planned Parenthood versus Casey. In that decision Justice Kennedy did not reverse Roe v. Wade but rather, basically affirmed Roe v. Wade. But he went on to say that even with Roe, there could be state legislated restrictions on abortion that would be found to be constitutional so long as they did not constitute an undue burden on a woman’s access to abortion. That set the stage for the state by state legislative battles over the issue of abortion that have characterized the last couple of decades.

The most important issue here to understand is that Justice Kennedy allowed that there could be some restrictions on abortion that would pass constitutional muster but the most important issue was the fact that he affirmed the central holding of Roe v. Wade which was a woman’s supposed constitutional right to an abortion. Had Justice Kennedy decided otherwise, it would have led to a five-four decision, again with Justice Kennedy being the fifth vote to reverse Roe v. Wade. That would have meant for the last several decades, a very different legal landscape of abortion in the United States.

We jump from 1988 to 2007 when Justice Kennedy was again a very important and crucial vote in deciding that Congress and the President of the United States did have the authority to pass a law that outlawed so-called partial birth abortion. The majority in that case, which was known as Gonzales versus Carhart, ruled that the partial birth abortion ban did not conflict with Roe v. Wade and was not thus unconstitutional.

In the case of the law on homosexuality, the entire complex of LGBTQ issues, the stage was set not in 1973 but in 1986 when the Supreme Court handed down a decision known as Bowers versus Hardwick. In that case the Supreme Court upheld the right of the State of Georgia to criminalize homosexual behavior. That was 1986. It was Justice Kennedy who joined the court in 1988. Justice Kennedy’s longest lasting legacy, as reflected upon by many in the United States, will be on the question of homosexuality and same-sex marriage. In 1996, a decade after the Bowers decision in 1986, Justice Kennedy became instrumental in a case from Colorado. That case, known as Romer v. Evans, set the stage for the case that would appear before the court in 2003 known as Lawrence v. Texas.

In 2003, Justice Kennedy was a crucial vote and eventually he was the author of the court’s majority opinion in a case known as Lawrence versus Texas. That case is basically parallel to Roe v. Wade. After Lawrence v. Texas and the majority opinion written by Justice Kennedy, the Supreme Court outlawed in all 50 states any criminalization of homosexual acts. In 2013, ten years after the Lawrence v. Texas decision, Justice Kennedy was again the crucial pivotal fifth vote in a case known as the United States versus Windsor. In that case, again, a case for which Justice Kennedy wrote the decisive majority opinion, Justice Kennedy and the majority of the court struck down Section Three of Defensive Marriage Act. Thus setting the stage for in 2015 the Supreme Court of the United States, in the case known as Obergefell versus Hodges, striking down all state laws refusing to validate and recognize same-sex marriage.

Putting all of this together it becomes clear why it has been argued by so many that the most important single individual in the United States in the moral revolution of the last several decades is none other than Justice Anthony Kennedy. It’s not only the fact that he was so often the crucial pivotal fifth vote. It’s not that so often he wrote the majority opinion. It is also the fact that his arguments reflected the very nature and essence of the moral revolution that was unfolding and of which he was such a proponent.

Consider for example the opening words of Justice Kennedy’s decision for the majority in the case legalizing same-sex marriage, the Obergefell decision. Justice Kennedy wrote, “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow person within a lawful realm to define and express their identity.” In response, Justice Antonin Scalia said that in those words the majority of the Supreme Court, and that meant most particular Justice Anthony Kennedy, had “descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mythical aphorisms of the fortune cookie.”

So far in his presidency, President Trump has had the opportunity to name and to have confirmed one justice of the US Supreme Court, that is of course Justice Neil Gorsuch. But the replacement of the late Justice Antonin Scalia with Neil Gorsuch didn’t change the ideological composition of the court. Replacing Anthony Kennedy almost assuredly will. That’s why instantaneously the political stakes have now arisen so quickly. That is why everyone understands that this crucial nomination will be determinative of the future of the United States Supreme Court. That is why those on any side of the great divide in the United States over moral, legal, and constitutional issues understands that everything is now at stake in a way that has not been true for at least many decades in the history of the United States Supreme Court.

This retirement gives President Trump a second opportunity to name a justice. Almost immediately after congratulating Justice Kennedy upon his retirement the President made a statement that he would make his nomination from the list of 25 people he had identified as potential justices of the Supreme Court when he was running for president. As was well known then and now, that list came largely at the suggestion of the Federalist Society, a society of lawyers, professors, and legal scholars who are committed to a strict constructionist or textualist understanding of the US Constitution. In making that state President Trump not only affirmed a pledge he had made when he was running for president, he also gave an exceedingly clear signal of the battle that lies ahead.

Those committed to a progressivist understanding of the Constitution also have another challenge before them. It’s the challenge of the calendar, or what might be called the actuarial tables, the tables of age. One member of the court’s liberal wing is just barely younger than Anthony Kennedy. That’s Justice Stephen G Breyer. The justice considered the most liberal over the last several decades, Ruth Bader Ginsburg, is now 85. To this must be added the consideration that President Trump’s nomination must be considered by the Senate. That’s why it was crucially important yesterday that the Senate Majority Leader, Mitch McConnell, senator of Kentucky, gave the assurance that the Senate will vote on a nomination sent by President Trump by this fall.

The Majority Leader’s statement was short but clear, “The Senate will vote to confirm Justice Kennedy’s successor this fall.” Well as if the current political season were not interesting enough it is even more interesting now. For that reason and more we will be watching closely as developments unfold. The most important development yet to come will be when President Trump nominated the successor to the seat held by Justice Anthony Kennedy. That is now expected to come at the very latest over the next few weeks. That will set the stage for one of the great political battles and one of the great battles over ideas in the recent history of the United States of America.

Part II

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In yet another victory for free speech, Supreme Court rules public-sector employees can’t be forced to pay dues to labor unions

Next, the retirement announcement by Justice Kennedy largely overshadowed an important decision that was handed down by the Supreme Court yesterday as the Court comes to the end of its current term. In this case as Robert Barnes of the Washington Post reports, “Conservatives on the Supreme Court said that it was unconstitutional to allow public employee unions to require collective bargaining fees from workers who choose not to join the union.” Barnes went on to say, “This is a major blow for the US Labor Movement.” He went on to describe, and this is right, that the court in a five-four decision, again Justice Kennedy in the five, overturned a 40 year old precedent and said that compelling such fees, that is from labor unions, was a violation of workers’ free speech rights. “The rule could force the workers,” said the court, “to give financial support to public policy positions they opposed.”

In this case the majority opinion was written by Justice Alito. What’s most important to recognize in this case is the pattern. Just two days ago the Supreme Court handed down a decision we discussed early on The Briefing. In that decision, the court invalidated a law in California that required crisis pregnancy centers and the people who work in them to articulate a state position to coerce that speech in violation of their own deepest moral and theological commitments. Similarly, and here’s the pattern, in the decision in the public sector union case handed down yesterday, a majority of the United States Supreme Court said that political speech could not be coerced from those who were required by the laws in respective states to fund the labor unions.

Now in order to understand this decision and make no mistake, it’s a massively important decision, we have to go back and understand the history of the Labor Union Movement in the United States. Christians don’t often think about this history but we should. Especially in the early decades of the 20th century, labor unions emerged as a check on what was thought to be the unchecked power of industrialists, of business interests in the United States. They were understood to be trampling upon the rights of workers. Labor unions emerged as a very powerful counterbalance to the power of business owners and industrialists. During the middle decades of the 20th century labor union membership mushroomed in the United States. So much so that at one point about 50% of workers in the United States either were or had been members of a labor union.

The vast changes that have taken place in the United States, by the way, those vast changes include the fact that there has now been established by Congress a vast array of labor laws. There are all kinds of protections for workers that are now understood to be a part of American law and constitutional order. Furthermore, in the vast economic transformations that have taken place over the last several decades, workers have in effect gained authority by expertise. The fundamental changes in the society have meant that labor unions have largely been sidelined.

Just to think about how that has happened, in 1983 still 20% of all American workers were members of a labor union. By 2016 that was down to less than 11%. Here’s what’s crucially important. In the private sector, labor representation right now is less than seven percent. That means 93% of private sector employees in the United States are not covered by a labor union. They haven’t joined a labor union. So where have labor unions now and in recent history been particularly influential? Well, it’s where labor unions didn’t even emerge in the early decades of the 20th century, in so-called public sector unions. This mostly represents government workers. It’s those in the public sector. They include not only those who work in the apparatus of municipal state and federal, or for that matter, civic governments. It also includes a vast army of teachers, many of whom are members of the various teachers unions.

The decision handed down yesterday has to do specifically and exclusively with public sector labor unions. But that’s where virtually all the action has been in American union activity and in the political activity of those unions for the last several decades. Yesterday the decision of the Supreme Court means that public sector employees cannot be compelled to pay dues to public sector unions, even if those unions may claim they’ve separated out their political speech from their other activities. Because, as the majority of the Supreme Court said, those other activities are also political and requiring the contributions is in effect coercing speech.

That means that another of the most interesting questions that will be answered in months to come is how much money these public sector unions have when they cannot compel non-members to pay their dues. It was another win for free speech. It was another reminder of the importance of the United States Supreme Court.