For Liberals, Little to Cheer in Kennedy's Final Term

      Justice Anthony M. Kennedy gave liberal advocates and interest group little reason to cheer in his final term with his opinions and votes and no special reason apart from his previous record to mourn his decision to retire after 30 years on the Supreme Court. The news of Kennedy's decision spread as Court watchers were still digesting a batch of major 5-4 decisions in which Kennedy had helped give the Court's conservative bloc the clout to uphold President Trump's travel ban and strike down a 41-year-old precedent beneficial to public sector unions.
      Kennedy's final term is a useful reminder that even though he came to the Court as President Ronald Reagan's third choice — after the ill-fated nominees Robert Bork and Douglas Ginsburg —  he still came as a dyed-in-the-wool Republican with conservative DNA. He helped shift the Court to the right in his initial terms by providing pivotal votes needed to limit remedies in federal job discrimination cases until Congress and President George H.W. Bush enacted a law overturning two of them.
      Kennedy emerged as the swing-vote justice much beloved by liberal interest groups only in 1992 when he provided a critical vote, to widespread surprise, to uphold the abortion rights ruling Roe v. Wade in Planned Parenthood v. Casey (1992). In succeeding years, he gained further acclaim from the political and legal left with decisions in several areas, most famously in three landmark decisions guaranteeing political and legal rights for gays and lesbians.
      That was then, and this is now: in the 2017 term Kennedy was a reliable vote for the conservative bloc in virtually all of the most closely divided decisions. Three years ago, he was celebrated as the author and the critical fifth vote for the decision in Obergefell v. Hodges (2015) that guaranteed marriage rights for same-sex couples nationwide.
      Among his six majority opinions in the 2017 term, however, Kennedy's first was a major blow to liberal advocacy groups. He led a 5-4 majority in Jesner v. Arab Bank that protected foreign corporations from suits in U.S. courts under the Alien Tort Statute for human rights violations abroad. He also discovered and highlighted the purportedly anti-religious comments by Colorado civil rights commissioners in the gay wedding cake case that resulted in his 7-2 opinion in Masterpiece Cakeshop in favor of the Colorado baker who refused to make a cake for a gay couple's wedding celebration.
      Among his other four majority opinions, three were cut from different cloth. The 9-0 decision in Byrd v. United States protected Fourth Amendment rights for unauthorized drivers of rental cars. The 6-3 ruling in Hughes v. United States gave guilty-pleading defendants in federal court the benefits of post-plea reductions in Sentencing Guidelines. The 8-1 ruling in Lozman v. Riviera Beach made it somewhat easier to sue on free-speech grounds for retaliatory arrests.
      In contrast to the decisions most celebrated by Kennedy's liberal admirers, however, not once during the 2017 term did Kennedy give the four liberals the fifth vole they needed to advance their views or to blunt the conservative juggernaut. And Kennedy actually led the dissenters in the liberal bloc's most important 5-4 victory: the decision written by Chief Justice John G. Roberts Jr. in Carpenter v. United States to require police to get a search warrant to obtain cell phone records needed to track a suspect's whereabouts over an extended period.
      Out of 18 5-4 decisions, Kennedy gave his four Republican-appointed conservative colleagues the fifth vote they needed to prevail in 13. Those cases include decisions to enforce mandatory arbitration in the workplace, uphold Ohio's aggressive purge of voter registration rolls, and — in a Kennedy opinion — to uphold states' ability to tax online sales. Only in the term's final decision, the water rights dispute in Florida v. Georgia, did Kennedy provide the fifth vote for the mostly liberal majority that Breyer led in giving Florida a second chance to protect its oyster beds from Georgia's water-hungry farmers.
      Kennedy's final opinion in U.S. Reports will be the toothless two-page concurrence he wrote in the travel ban case, Trump v. Hawaii. He wrote, as though in an advice column instead of a judicial decree, that it was "imperative" for government officials to obey the Constitution even if they had broad discretion "free from judicial scrutiny."
      Three weeks earlier, Kennedy had led the Masterpiece Cakeshop Court in ruling against the Colorado Civil Rights Commission because of stray comments by commissioners that Kennedy viewed as anti-religious. But Kennedy said not a word about the explicitly anti-Muslim comments that President Donald Trump made on the campaign trail and in the White House in advance of adopting a travel ban targeting mostly majority-Muslim countries.
      Gay rights is one of several elements of Kennedy's legacy for liberal interest groups to celebrate. He protected racial preferences in higher education with his decision in Fisher v. University of Texas (2016). In the same year, he protected abortion clinics from overly intrusive state regulations in Whole Woman's Health v. Hellerstedt (2016).  He also widened the scope of the federal Fair Housing Act in Texas Dep't of Housing & Community Affairs v. Inclusive Communities Project, Inc. (2015). And he helped protect juveniles and intellectually disabled offenders from the death penalty with his opinions or votes in a series of cases early in the 2000s.
      Yet Kennedy's conservative DNA came to the surface in his final term, just as it had done in such pivotal recent decisions as the gun rights ruling in District of Columbia v. Heller (2008) and the campaign finance ruling in Citizens United v. Federal Election Commission (2010). But make no mistake: a Trump-nominated and -confirmed successor will shift the Court, sharply and lastingly, toward the extreme positions that the political and legal right has been advancing for the past two decades. The fight over his successor will be fierce, as well it should be, for the stakes for law and justice are high indeed.

On Gerrymandering, Court Needs Constitutional Resolve

      The Supreme Court blinked twice before its decision in Baker v. Carr (1962) opened the door to the one-person, one-vote revolution that made political equality a constitutional rule in the United States. The Court in 1932 found no requirement for congressional districts to have equal population and in 1946 turned aside a challenge to malapportioned state legislatures by bowing to Justice Felix Frankfurter's warning against entering "the political thicket."
      That history helps explain the Court's hesitation over the past three decades to rule on legal challenges to the discredited centuries-old practice of political gerrymandering. Better understood, however, history teaches that the Court need not hesitate — as it did last week, in two separate decisions. Instead, with constitutional resolve, the Court should follow the example from the 1960s and adopt a workable legal framework to force needed reforms onto an unwilling and self-interested political system.
      The Court in the 1960s needed only two years to establish the now familiar rules that govern redistricting cases. Just one year after Baker v. Carr, Justice William O. Douglas wrote the 8-1 decision in Gray v. Sanders with its famous declaration that political equality "can mean only one thing — one person, one vote." One year after that ruling, Chief Justice Earl Warren wrote also for an 8-1 Court in Reynolds v. Sims (1964) that states with bicameral legislatures must apportion seats in both chambers on the basis of population, not geography. "Legislators represent people," Warren wrote, "not trees or acres."
      The gerrymandering issue cries out for the same kind of constitutional clarity, but for 30 years now the justices have worried instead about how to fashion a "manageable" standard for courts to apply in determining how much politics is too much in the redistricting process. Ever since the first of the false-start gerrymandering cases — Davis v. Bandemer in 1986 — the Court has needed to hitch up its pants just as the Warren Court did instead of wringing its hands.
      The Court could declare firmly that representative democracy can mean only one thing: people elect their representatives; the representatives do not get to pick the people they represent. And a democratic republic does not allow a political majority to rig the system today in a way that preserves its majority status into the future.
      The districting plans challenged in two cases last week would be thrown out under that simple, easy-to-understand standard. But instead, with seeming partisan evenhandedness, the Court last week turned aside a Democratic challenge to a Republican gerrymander in a Wisconsin case and a Republican challenge to a Democratic gerrymander in a Maryland case. The partisan manipulation in both cases was blatant and extreme, but Chief Justice John G. Roberts Jr. led two unanimous decisions that sent the challengers away with nothing to show for their evident political injuries.
      The Wisconsin case, Gill v. Whitford, rejected on the technical issue of legal standing, was a particular disappointment for political reformers, who thought they had the silver bullet needed to take aim against partisan gerrymanders. The plaintiffs showed that a Republican-controlled legislature and Republican governor had redrawn the state's 99 Assembly districts in a way that allowed them, through three election cycles, to gain solid legislative majorities significantly disproportionate to the party's overall vote totals in legislative races.
      The plaintiffs had devised a parameter that they urged the Court to use as the "manageable" standard needed to determine when a political gerrymander goes too far. Their so-called "efficiency gap" calculated each of the major parties' "wasted votes" — that is, more votes than needed packed into a "safe" district and other votes "cracked" apart and scattered into the opposing party's districts. By showing that the Republican-drawn plan resulted in many more wasted Democratic votes than wasted Republican votes, the plaintiffs won a lower court decision invalidating the state map and ordering a new one to be drawn either by the legislature or the court itself.
      A half-century ago, Warren steeled a nearly unanimous Court to confront the political evil of malapportionment. Roberts instead led a unanimous Court in ducking a political evil that, thanks to computer-drawn maps, bids fair to worsen in the next election cycle. To duck the Wisconsin case, Roberts found that the plaintiffs had failed to establish legal standing by proving that their individual districts were improperly drawn. In the Maryland case, Roberts' hand was evident in the unsigned opinion that found Republicans had been too slow in fashioning a freedom-of-association claim to challenge the total recomposition of what had been one of the GOP's few congressional districts in the predominantly Democratic state.
      Encouragingly, Justice Elena Kagan showed the necessary constitutional resolve in a concurring opinion joined by three liberal colleagues but, unfortunately, not by the handwringing justice Anthony M. Kennedy. Kagan went along with Roberts on standing and may have helped influence him in giving the plaintiffs the chance to try their case again rather than throwing it out, as conservative justices Clarence Thomas and Neil Gorsuch urged.
      The Court, Roberts declared, "is not responsible for vindicating generalized partisan preferences." Kagan disagreed. "Courts have a critical role to play in curbing partisan gerrymandering," she wrote. She also envisioned the possibility that the Wisconsin plaintiffs could better develop an "associational theory" for the case that would entail a different theory of legal standing and open the door to a statewide remedy. On that, not-too-sturdy reed hangs the hope of devising, after too long a wait, a judicial remedy for a political evil that the Constitution, properly understood, does not countenance.

At Supreme Court, Justices Clash on Right to Vote

      Viewed in strictly political terms, the Supreme Court's decision on Ohio's aggressive program of removing nonvoters from registration rolls was easy to predict — and the predictions proved to be right. Five Republican-appointed conservative justices voted to uphold a program that the state's Republican secretary of state touted as having removed 1 million people from voter rolls over three election cycles. But four Democratic-appointed liberal justices found the program to be in violation of a federal law that prohibits deregistering voters "by reason of a failure to vote."
      Writing for the majority in Husted v. A. Philip Randolph Institute [June 11], Justice Samuel A. Alito Jr. wrapped himself around what he saw as the clear meaning of overlapping statutory provisions from two federal laws passed a decade apart aimed, respectively, at making it easier to register to vote or actually to vote. He and his conservative colleagues saw in those laws permission for Ohio to warn non-voters that they would be removed from registration rolls unless they returned a mailed notice to prove their current residence.
      Unsurprisingly, given human nature, the vast majority of Ohioans who received those notices tossed the notices without returning them. Those who failed to vote in the next two elections were purged from the registration rolls: more than 1 million, by Husted's count, from the time of his election to the post in 2010 up to the beginning of the legal challenge to the procedure in 2015.
      Alito concluded a complex dissection of the two federal statutes involved by insisting that the liberal justices' dissent amounted to a "policy disagreement" rather than a different reading of the statutory provisions. He was right, but wrong in his diagnosis. The justices' policy difference turns not on the mechanics of updating registration rolls, but on the priority that the liberal bloc places on the right to vote itself.
      The liberal justices seem to have a better appreciation than the conservatives of the many hard battles fought to win and protect the right to vote from Seneca Falls in the 19th century to Selma in the 20th. As seen in the Court's decisions upholding voter-ID laws, the conservatives have too readily accepted the unsubstantiated fear of voter fraud spread for partisan reasons by Republican politicians and conservative interest groups. The liberal justices see the right to vote as too important to sacrifice to the partisan interests of those with an un-American distrust of the expanded franchise.
      Given Ohio's importance as a battleground state, the Court's decision is politically significant of itself in its implications for future elections. But it takes on more significance by giving election officials in other states a roadmap if they want to emulate Ohio's Jon Husted in bragging not about registering more voters but about removing once-qualified voters from registration rolls.
      Alito's claimed fidelity to congressional enactments strains credulity given the stated goal of the first of the two federal laws at issue. The National Voter Registration Act, enacted in 1993 and better known as the Motor Voter Act, was most prominently aimed at increasing voter registration. The law required states to allow would-be voters to register at sites used for obtaining driver's licenses or obtaining public assistance.
      Along with those provisions, the 1993 law also required states to establish a "general program" for updating voter registration rolls — specifically by making "a reasonable effort" to remove voters who become ineligible by changing their residence. But the act's Failure-to-Vote Clause specifically prohibited removing any registered voter "by reason of the person's failure to vote."
      The Help America Vote Act, enacted in 2002 with the Florida vote-count fiasco in mind, was aimed primarily at helping state and local election officials upgrade and safeguard their voting and vote-counting machinery with the assistance of a new federal agency, the Election Assistance Commission. The law also included a provision that either reinforced or merely clarified the Failure-to-Vote Clause by providing that no registrant be removed "solely by reason of a failure to vote."
      Writing for the four liberal dissenters, Justice Stephen G. Breyer argued that Ohio's procedure removed registered voters "by reason of" their failure to vote: the very reason they were selected for what he called the "last chance" notices. Alito countered by emphasizing the adverb "solely" in the later law: removed only for failing to confirm their residence, not for non-voting. Breyer had what ought to have been a convincing rebuttal: the state's effort to verify residence was not "reasonable," as the 1993 law required.
      Out of more than 1.5 million notices mailed out, fewer than one-third were returned, Breyer noted, with 60,000 confirming a change of address and 235,000 verifying their listed residence. It was unreasonable, Breyer argued, to assume that the 1 million-plus Ohioans who tossed the notices without returning them had moved. Indeed, he mocked the idea that 13 percent of Ohio's voting population had moved in a matter of years. "[T]he streets of Ohio's cities are not filled with moving vans," he wrote.
      In a separate dissent, Justice Sonia Sotomayor cut to the chase by noting the disparate impact of Ohio's procedure: 10 percent of voters removed in African-American neighborhoods in Cincinnati compared to 4 percent in a majority-white suburban neighborhood. Alito's terse response: Sotomayor's concerns were "misconceived." The question naturally arises: what part of voter suppression do the conservatives not understand?

In Wedding Cake Case, an Advance for Gay Rights?

      Justice Ruth Bader Ginsburg opened her dissent from the Supreme Court's decision in the gay wedding cake case by saying that she agreed with "much" of Justice Anthony M. Kennedy's opinion for the 7-2 majority. Among other losers, David Cole, national legal director of the American Civil Liberties Union, went further. "We lost the battle, but we won the war," he wrote in an op-ed for newspapers.
      Gay rights advocates in fact walked off with a win of sorts in this week's Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission [June 4], but it is only a beginning, not the end of the war with anti-gay religious conservatives.
      Kennedy opened the substantive sections of his opinion by picking a winner between same-sex couples seeking goods and services for their weddings and Christian business operators unwilling to serve them because of "religious and philosophical objections." Writing with black-letter law certitude, Kennedy declared, as a "general rule," the primacy of civil rights law. "Such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law," he wrote.
      In advance of that general rule, Kennedy made clear that gay persons and gay couples can be — "and in some instances" must be — protected in the exercise of their civil rights. "Our society has come to the recognition," Kennedy wrote and read forcefully from the bench, "that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth."
      A victory, to be sure, but only in those 19 states that include protection for sexual orientation in their public accommodation laws. In the others, same-sex couples denied service have no recourse even if a business operator does not couch bias in religious terms.
      In this case, Charlie Craig and David Mullins end with little to show for the indignity they suffered back in July 2012 when the devout Christian baker Jack Phillips dismissed them from his Masterpiece Cakeshop in suburban Denver. Instead of dwelling on that indignity, however, Kennedy focused on what he and six other justices saw as the "clear and impermissible hostility" that the Colorado Civil Rights Commission and the state's court system showed toward Phillips' religious beliefs.
      That hostility consisted in part of remarks by two civil rights commissioners from the two meetings back in 2013 when the seven-member commission considered the staff's recommendation to find Phillips guilty of having violated the state's anti-discrimination law. One commissioner suggested, in Kennedy's summary, that Phillips needed to change his "personal belief system" to do business in the state. The other declared, more provocatively, that religion had been used through history to justify discrimination — including slavery and the Holocaust.
      Kennedy and the others — all but Ginsburg and her dissenting colleague Justice Sonia Sotomayor — found these remarks objectionable, all the more so because no commissioners objected and the state never disavowed them. Further evidence of hostility was the commission's decision not to charge three bakers with civil rights violations by rejecting a customer's religion-based requests for a cake with explicit anti-gay marriage inscriptions.
      Those cases were readily distinguishable from Phillips' even if the rationale was poorly expressed by the commission. And Ginsburg found the commissioners' comments similarly no reason for absolving Phillips for the refusal to serve Craig and Mullins. But Kennedy and the others were so confident in their view that they invalidated the commission's order with no remand to allow reconsideration with the claimed hostility toward religion removed.
      Despite the reversal, experts at the annual meeting of the progressive American Constitution Society this week [June 8] saw more silver lining than cloud. "In many ways, the decision was exactly what we needed--legally and politically," said Shannon Minter, legal director for the National Center for Lesbian Rights. With the reversal, "religious conservatives feel they have been seen and heard," Minter said, and further to the good they have been "deprived of the opportunity to feed a grievance strategy."
      In a quick confirmation of the civil rights groups' optimistic reading of the decision, the Arizona Court of Appeal cited Kennedy's "general rule" in a decision on Thursday [June 7] rejecting a Phoenix stationery store's plea for an exemption from serving same-sex couples. "If appellants . . . want to operate their for-profit business as a public accommodation, they cannot discriminate against potential patrons based on sexual orientation," the court wrote in Brush & Nib Studio LC. v. City of Phoenix.
      Kennedy closed his opinion with an even-handed admonition that future cases of the sort "must be resolved with tolerance, without undue respect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market." But religious conservatives responded to the decision with exultant claims of victory belying the hoped-for tolerance. In Tennessee, a hardware store owner in a small, remote county posted the kind of sign that Kennedy had warned against: "No Gays Allowed."
      The Supreme Court has seen this story before: the "all deliberate speed" rule to dismantle racial segregation in public education turned into decades of resistance and foot-dragging. With an ambivalent victory, gay couples can expect the same for the foreseeable future.

Thomas's Lone-Wolf Call to Abolish Exclusionary Rule

      Supreme Court Justice Clarence Thomas wants to abolish the most important legal rule that protects Americans from illegal searches by police. Writing only for himself in a decision last week [May 21], Thomas argued in a nine-page concurring opinion that the oft-criticized exclusionary rule for suppressing illegally obtained evidence has no historical basis and the Supreme Court no authority to require states to adopt it.
      Thomas prefaced his opinion in Collins v. Virginia by agreeing that Charlottesville, Va., police officers had violated Ryan Collins' Fourth Amendment rights by conducting a warrantless search in the driveway of his girlfriend's home that uncovered a stolen motorcycle. But in Thomas's telling, the Framers of the Constitution "would not have understood the logic of the exclusionary rule" — the century-old rule that bars the use of illegally obtained evidence in federal courts.
      The Supreme Court used its supervisory power over federal courts to adopt the exclusionary rule in Weeks v. United States (1914), Thomas recites the subsequent developments. Three decades later, the pre-Warren Court refused on a 6-3 vote to impose the exclusionary rule on states in Wolf v. Colorado (1949). Twelve years later, however, the Warren Court launched the criminal procedure revolution by overruling Wolf with its 5-3 ruling in Mapp v. Ohio (1961). to require states to rule any evidence obtained in violation of the federal Constitution inadmissible in state criminal trials.
      Thomas relates these developments as though in answer to a legal history exam, with only a single footnote about the potential impact of abolishing the exclusionary rule. Without that rule, Ryan Collins would still stand convicted of receiving stolen property despite the constitutional violation. He would have no recourse except a civil suit against the police officers who conducted the illegal search or perhaps a disciplinary proceeding against the officers.
      As to civil suits, the Court's recent decisions on qualified immunity protect police from liability for all but the most clear-cut constitutional violations, In Collins' case, for example, the dissenting justice Samuel A. Alito Jr. argued that the two Charlottesville officers were "entirely reasonable" in going on to the driveway to pull off the tarpaulin that shielded Collins' motorcycle from public view.
      Writ large, abolition of the exclusionary rule would surely encourage police officers to give less regard to the sometimes difficult-to-discern Fourth Amendment rules as to what amounts to an "unreasonable" search. The recent history of police practices — think about the continuing toll of unarmed civilians killed in police encounters or the uncounted number of innocent pedestrians subjected to "stop and frisk" pat-downs — argues strongly against loosening rules aimed at controlling police conduct.
      Thomas blithely suggests in a last-page footnote, however, that state tort law, state criminal law, federal civil rights suits, and police discipline are all "effective deterrents" against Fourth Amendment violations by police. "The problem before Mapp was there weren't any remedies," says Orin Kerr, a Fourth Amendment expert at George Washington University Law School.
      Thomas's originalist critique breaks no new ground. "I didn't see anything new," says Kerr. It would draw no more interest than the most recent Twitter exchange among original meaning cultists but for the likelihood that Thomas has at least another 10 years to try to find five votes for his view and the supposition that Thomas now thinks that a realistic possibility.
      For now, none of the other justices is ready to abolish the exclusionary rule, not even Thomas's newfound pal, Neil Gorsuch. "I don't see it as something likely to happen any time soon," says Kerr. Among the many other lone-wolf opinions that Thomas has written in 27 years on the Court, however, one stands out as having helped get the ball rolling on a major change in constitutional law.
      When the Court struck down part of the Brady Handgun Violence Prevention Act in in Printz v. United States (1997), Thomas called in a short concurring opinion for reconsidering the 60-year-old precedent that the Second Amendment did not establish a personal right to possession of firearms. A decade later, Thomas was part of the five-justice majority that adopted that view in District of Columbia v. Heller (2008) and then, two years later, enforced the same gun-rights protective view to state and local governments in McDonald v. Chicgo (2010).
      In his new opinion, Thomas acknowledges that the Mapp Court described the exclusionary rule as "an essential part of the Fourth and Fourteenth Amendments." But he cites a string of subsequent decisions as contradicting what he calls the Court itself has called Mapp's "expansive dicta
."       Thus, through the years, the Court has carved out exceptions to the exclusionary rule, including several from the Roberts Court. In Roberts' first term, for example, the Court issued a 5-4 ruling in Hudson v. Michigan (2006) that an acknowledged  violation of the Fourth Amendment-derived "knock and announce" rule did not require suppression of the evidence police found after barging in to a private home without warning.
      For now, the Roberts Court has been "strong on the right," according to Kerr, but "weak on remedies." Thus, in Collins' case, Justice Sonia Sotomayor spoke for eight justices in declaring a driveway entitled to the same protection that the Fourth Amendment extends to the home. But Thomas's shot-across-the-bow concurrence underscores the risks to individual rights that could materialize with future changes in the Court's personnel.