Chemerinsky: What’s at stake if Kavanaugh is on the Supreme Court

U.S. Supreme Court

Erwin Chemerinsky

Erwin Chemerinsky

To a very large extent, liberals and conservatives agree as to the likely effects of Judge Brett Kavanaugh replacing Justice Anthony Kennedy on the U.S. Supreme Court. They disagree, of course, as to whether these changes are desirable. With the hearings on the Kavanaugh nomination scheduled to begin Sept. 4, it is important to consider what his confirmation would mean.

There are many areas where Kennedy predictably voted with the conservative justices, and everyone expects that Kavanaugh would, too. For example, both would vote to strike down laws limiting corporate spending in election campaigns, to invalidate many restrictions on guns as violating the Second Amendment and to reject the idea of a wall separating church and state. Both are pro-business and consistently favor business interests over those of consumers and employees. In this sense, the most important consequence of replacing Kennedy with Kavanaugh is substituting a 53-year-old conservative for one who recently turned 82.

But it also is possible to identify a number of areas where Kennedy was the fifth vote for a liberal result, and where it is uncertain, or even unlikely, that Kavanaugh would decide the same way.

Abortion rights: In 1992, in Planned Parenthood v. Casey, Anthony Kennedy was the fifth vote in a 5-4 decision to reaffirm Roe v. Wade. In 2016, Kennedy was the fifth vote in a 5-3 decision in Whole Woman’s Health v. Hellerstedt to strike down a Texas law that would have closed most facilities in that state where abortions are performed. It is expected by liberals and conservatives alike that Kavanaugh will vote differently and be a fifth vote to uphold a myriad of laws that have been enacted that restrict abortions and perhaps be a fifth vote to overrule Roe.

Affirmative action: In 2016, in Fisher v. University of Texas, Austin, Kennedy wrote the opinion upholding the University of Texas’ affirmative action program. His majority opinion spoke of the compelling interest in having diverse student bodies and the need for deference to colleges and universities in achieving diversity. Kavanaugh replacing Kennedy could mean a dramatic change in the law and five votes to end all forms of affirmative action.

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Gay and lesbian rights: Kennedy wrote the majority opinion in every Supreme Court case in history expanding rights for gays and lesbians: Romer v. Evans (1996), Lawrence v. Texas (2003), United States v. Windsor (2013), Obergefell v. Hodges (2015). There is nothing in Kavanaugh’s record to suggest that he would vote with liberal, rather than the conservative justices on these issues. In light of the vehement dissents by the conservatives in the marriage equality cases, the court could reconsider those holdings. Also, there are many issues likely to arise—whether sexual orientation discrimination in employment violates the prohibition on sex discrimination, whether the religious beliefs of a business owner permit discrimination against gays and lesbians, whether discrimination against transgender individuals violates federal law or the Constitution—where Kavanaugh replacing Kennedy could make all the difference.

Exclusionary rule: In Hudson v. Michigan (2006), Justice Antonin Scalia wrote an opinion—joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito—that called for the elimination of the exclusionary rule in Fourth Amendment cases. He argued that the costs of excluding evidence when police officers violate the Fourth Amendment outweigh the benefits of doing so. Justice Kennedy agreed to the result in that case, but declared that the continued operation of the exclusionary rule was not in doubt. But with Kennedy being replaced by Kavanaugh, there could be five votes to overrule a doctrine that conservatives have opposed for decades.

Punishment in criminal cases: In Roper v. Simmons (2005), Kennedy wrote the opinion in a 5-4 decision declaring the death penalty unconstitutional when imposed for crimes committed by juveniles. In Kennedy v. Louisiana (2008), Kennedy wrote the opinion in a 5-4 decision declaring the death penalty unconstitutional when imposed for the crime of child rape. In Graham v. Florida (2010), Kennedy wrote the opinion in a 5-4 decision holding that it is cruel and unusual punishment for there to be a sentence of life without the possibility of parole for nonhomicide crimes committed by juveniles. In Miller v. Alabama (2012), Kennedy was in the majority in a 5-4 decision ruling that it is cruel and unusual punishment to impose a mandatory sentence of life without the possibility of parole for homicides committed by juveniles. But there is nothing in Kavanaugh’s record to suggest that he would come to the same conclusions.

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Disparate impact liability: Several federal civil rights laws—such as in the areas of employment discrimination, voting rights and fair housing—allow liability upon proof of a racially disparate impact. For example, in Texas Department of Housing and Community Affairs v. Inclusive Communities Project Inc. (2015), Justice Kennedy wrote the opinion in a 5-4 decision holding that there is disparate impact liability under the Fair Housing Act of 1964. On the other hand, conservative justices have suggested that disparate impact liability raises serious constitutional problems because it forces decision-makers to take race into account in their decisions in order to avoid liability. Kavanaugh replacing Kennedy could make a huge difference in this important area of civil rights law.

Ultimately, replacing Kennedy with Kavanaugh is very likely to change what political scientists call the “median justice” on the court. In all of these areas, and overall, it is expected that Chief Justice Roberts will be the median justice. In all of these areas, Roberts was on the other side of Kennedy and much more conservative. It is likely that in all of these areas, Roberts now will be in the majority rather than being in dissent with Kavanaugh, if confirmed, as a fifth vote.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).

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