This month, the Supreme Court handed down decisions likely to erode voting rights, the labor movement and democratic values writ large. But Justice Anthony Kennedy’s retirement comes as a gut punch. While expected, his departure from the court sets the stage for a colossal battle not just over who President Donald Trump nominates, but also over the direction of our democratic system.
Justice Kennedy held the powerful role of swing vote on a divided court. That gave him broad authority from the bench, and at times he wielded it to advance rights for all. He will be rightly heralded for his opinion to make same-sex marriage the law across the land, but some of his other decisions have left our democracy in a worse state than when he joined the court in 1988.
His majority opinion in Citizens United v. Federal Election Commission opened the floodgates to unlimited political spending and super PACs that now course through the veins of federal elections. He joined a majority opinion that crippled key portions of the Voting Rights Act. Most recently, he voted to support the Muslim travel ban, and his decision to sidestep partisan gerrymandering imperils efforts to end the ways incumbents have locked in power.
There’s little doubt Trump will appoint a conservative to the court. But senators need to look past the rhetoric and the pitched battles and make a choice: Will they support a nominee who seeks to dismantle democracy, or one who pledges to at least uphold the constitutional principles of a free and fair democracy?
Because I’m a campaign finance expert, let’s take the Citizens United example as an object lesson in what a future justice just shouldn’t do. In that case, Kennedy and the court were confronted with the narrow question of whether a conservative nonprofit corporation (Citizens United) could purchase an ad for a documentary attacking a political candidate (Hillary Clinton) right before an election without running afoul of the country’s campaign finance law. Rather than address a narrow question with a narrow answer, Kennedy’s decision overturned precedent to argue that subjecting corporations to campaign spending restrictions was “censorship,” and that the government had “muffled the voices that best represent the most significant segments of the economy.”
The decision came alongside other misguided ones that have contorted our electoral system. But it led us down a path of near total deregulation of campaign finance in the United States. Today, campaigns are awash in anonymous money. Voters’ voices are being sidelined by the voices of the powerful. That’s never how our system was meant to run.
His failure to side with four colleagues who wanted to strike down extreme gerrymandering also irks those who want a more representative democracy. A decade ago, Kennedy, in fact, waffled on whether partisan map-drawing could be unconstitutional with the right legal standard in place. This year, after accepting two major cases on partisan gerrymandering, the court seemed poised to craft such a legal standard.
And then Kennedy led the court to an epic fail. Both cases were sent back to lower courts on procedural grounds, leaving a decision on the merits for another day (and, as we now know, a new justice). Many believe the court avoided the merits because Kennedy still couldn’t make up his mind, and now the path to successfully quashing excessive partisan gerrymandering is in serious doubt.
There are countless ways Americans will take the measure of any potential appointee. But senators, and the constituents to whom they ultimately answer, would be wise to demand a nominee who recognizes that central to the Constitution is the preservation of a fair and representative democracy.
Lawrence Norden is deputy director of the Democracy Program at The Brennan Center for Justice.