Justice Anthony Kennedy

  • October 2, 2014
    Guest Post

    by Kareem U. Crayton, associate professor of law, the University of North Carolina School of Law

    Voting has been described by the Supreme Court as “preservative of other basic civil and political rights.” So when law and policy leave voting insecure, the core project of governance itself faces grave risk. 

    During oral arguments preceding the June 2013 decision to invalidate a key feature of the Voting Rights Act in Shelby County v. Holder, Justice Anthony Kennedy dismissed concerns that voting would become less secure for racial minorities. Even absent Section 5’s preclearance oversight for states with egregious histories of discrimination, Kennedy asserted, Section 2 of the law would allow citizens to use traditional litigation to block discriminatory laws. A year into the post-Shelby County era, we have initial evidence of how this litigation has fared in practice.

    One test of Section 2 is playing out in North Carolina, where this week the 4th Circuit Court of Appeals ruled in favor of the North Carolina NAACP and allied groups in their challenge of a state law that is widely recognized as the nation’s most restrictive. The Court’s decision ordered a preliminary injunction for two provisions of the law – the elimination of same-day registration, and the prohibition of out-of-precinct ballots from being counted. The decision means that these rules will not apply in the November election, contrary to an earlier decision by a U.S. District Court to deny this preliminary injunction. A full trial regarding the merits of the law will go to court next July.

    According to the 4th Circuit, “The district court got the law plainly wrong in several crucial respects" in assessing whether North Carolina’s measure, known as H.B. 589, was likely in violation of Section 2. They continued, "When the applicable law is properly understood and applied to the facts as the district court portrayed them, it becomes clear that the district court abused its discretion in denying plaintiffs a preliminary injunction and not preventing certain provisions of House Bill 589 from taking effect while the parties fight over the bill's legality."

    North Carolina’s H.B. 589 enacts multiple changes to the state’s election system. It eliminates same-day voter registration, prohibits out-of-precinct ballots from being counted, shortens the early voting period by a week, eliminates a successful pre-registration program for 16- and 17-year-olds, prohibits counties from extending Election Day poll hours to account extraordinary circumstances (such as long lines), permits poll observers to challenge voters, and implements a strict photo ID requirement.

  • June 2, 2014
     
    Today, the Obama administration will announce new environmental regulations that will cut carbon pollution from power plants by 30 percent. The regulations represent the “strongest actions ever taken by the United States government to fight climate change.” Coral Davenport at The New York Times explains how the action will affect environmental health and its implications for the American electricity industry.
     
    Pro-choice activists are working to counter the growing anti-abortion legislation sweeping the country as many expect the issue to reach the Supreme Court next term. Sophie Novack and Sam Baker at The National Journal explain why, if the issue reaches the Court, pro-choice activists may be “on the verge of a massive gamble.”
     
    At Bilerico, John M. Becker discusses Justice Anthony Kennedy’s response to the National Organization for Marriage’s recent efforts to block same-sex marriage in Oregon.
     
    A six-year old girl is recovering from being a victim of a stray bullet while playing at a local Washington, DC playground. NPR’s All Things Considered addresses how gun violence continues to trouble America’s inner cities. 
  • April 23, 2014
     
    At The Daily BeastGeoffrey R. Stone, former ACS Board Chair and current Co-Chair of the Board of Advisors for the ACS Chicago Lawyer Chapter as well as Co-Faculty Advisor for the University of Chicago Law School ACS Student Chapter, discusses his experience on the President’s Review Group on Intelligence and Communications Technologies and why “constant, rigorous, and independent review is essential if we are to strike the proper balance between liberty and security in a changing world.”
     
    The Supreme Court heard oral argument yesterday in a case involving an “Ohio law that criminalizes the spreading of false information about a political candidate during a campaign.”  The challenge comes after an anti-abortion rights group mischaracterized former Rep. Steve Driehaus’ (D-Ohio) stance on abortion during his 2010 reelection campaign. Robert Barnes at The Washington Post has the story.
     
    Yesterday, the Supreme Court upheld Michigan’s ban on Affirmative Action in Schuette v. Coalition to Defend Affirmative Action. Justice Anthony Kennedy wrote for the plurality while Justice Sonia Sotomayor wrote an impassioned dissent. Writing for SCOTUSblog, Amy Howe details the case.
     
    Peter Hardin at GavelGrab notes that if New Jersey Gov. Chris Christie chooses not to reappoint Chief Justice Stuart Rabner it could “give rise to the perception that Christie was attempting to intimidate judges working without tenure.”
     
    At The New Yorker’s Daily Comment Hendrik Hertzberg explains New York Gov. Andrew Cuomo’s decision to join the National Popular Vote (NPV) interstate compact.
  • March 31, 2014
    Guest Post

    by Frederick Gedicks, Guy Anderson Chair and Professor of Law, Brigham Young University Law School

    In the wake of last week’s oral argument of the contraception mandate cases, numerous reporters and bloggers have suggested that the government’s defense of the mandate went badly because (roughly), “Justice Kennedy thinks Hobby Lobby is an abortion case.” The basis for this take is that Justice Kennedy’s questions linked the mandate with abortion rights, to which he has only a limited commitment: Justice Kennedy joined the joint opinion of Planned Parenthood v. Casey (1992) which upheld the “core” of Roe v. Wade (1973), but he subsequently authored the majority opinion in Gonzalez v. Carhart (2007), which upheld a federal statutory ban on late-term abortions despite the absence of health exception. (See also Stenberg v. Carhart (2000), with Kennedy dissenting to the Court’s striking down of a state ban.)

    But there’s another way of seeing Hobby Lobby. Justice Kennedy also asked questions that linked Hobby Lobby’s opposition to the mandate to the burdens a religious exemption from the mandate would impose on its employees, and he has expressed concern in past decisions about religious exemptions that shift the cost of accommodation from those who practice the accommodated religion to those who don’t. For example, Kennedy wrote in the Kiryas Joel that “a religious accommodation demands careful scrutiny to ensure that it does not so burden nonadherents or so discriminate against other religions as to become an establishment” (concurring in the judgment).

    This concern about cost-shifting religious accommodations would presumably be front and center in any case involving religious exemptions that would burden gays and lesbians. Whatever he thinks about abortion rights, there can be no question that Justice Kennedy has long been unequivocally opposed to discrimination against gays and lesbians. See United States v.  Windsor (2013); Hollingsworth v. Perry (2013); Lawrence v. Texas (2003); Romer v. Evans (1996). Indeed, it would appear from Windsor that Justice Kennedy is prepared to hold that state prohibitions and restrictions on same-sex marriage violate the both the Equal Protection and Due Process Clauses of the 14th Amendment.

    Religious Freedom Restoration Act (RFRA) exemptions for Hobby Lobby would open the door to state religious exemptions excusing for-profit businesses from serving same-sex couples or providing certain benefits to gay and lesbian employees. A religious exemption from the contraception mandate for Hobby Lobby would establish a more general principle that for-profit businesses and their owners are entitled to statutory accommodation of their religious beliefs, even when such accommodations impose significant costs on others who do not share those beliefs. Under this principle, not only could an employer claim the right not to provide services for a same-sex wedding on religious grounds, it could also claim the right not to provide mandated employee benefits like health insurance coverage for same-sex spouses, or leave under the Family and Medical Leave Act for gay employees who adopt a child.

  • June 26, 2013

    by Jeremy Leaming

    Beyond providing victory for equality, today’s Supreme Court opinion striking an integral provision of the so-called Defense of Marriage Act sent Justice Antonin Scalia into a fitful and contradictory rage.

    Though Scalia joined the majority opinion of Shelby County v. Holder, which invalidated a congressional action, usurping Congress’ constitutional authority to enforce the 14th and 15th Amendments, today he railed against the majority for invalidating Sec. 3 of DOMA, which unlike the Voting Rights Act, worked to discriminate against a certain group of people -- lesbians and gay men. So yesterday, Scalia joined his right-wing colleagues in gutting a landmark federal law aimed at preventing discrimination, while today he lodged an over-the-top dissent against striking down a provision of a blatantly discriminatory federal law. And he did so, as TPM’s Sahil Kapur notes, in fiery fashion – rather like he did in dissenting in Lawrence v. Texas issued 10 years ago today invalidating a state law discriminating against lesbians and gay men.

    According to Scalia, the majority in U.S. v. Windsor led by Justice Anthony Kennedy provided a “jaw-dropping” expansion of judicial review. “It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and every-where ‘primary’ in its role,” Scalia fumed.

    He didn’t stop there, adding the Constitution’s framers would not recognize the “black-robed supremacy that today’s majority finds so attractive.”

    Scalia, after grousing at great length, that the majority should not have decided the case, went on to provide his “view of the merits.”

    And his views on lesbians and gay men and laws that discriminate against them have not moved in 10 years.