The Supreme Court has just completed one of the more consequential terms in recent memory, with significant victories for constitutional liberties. Probably the most significant was with Janus v. Afscme, wherein the Court ruled 5-4 to overturn a deeply flawed precedent in the 1977 Abood decision that allowed states to require workers who aren’t union members to pay “agency fees” to support collective bargaining. As Justice Alito wrote in the majority opinion, “The idea of public-sector unionization and agency fees would astound those who framed and drafted the Bill of Rights”. This is a long overdue at least partial correction of a problem that should not have been created in the first place; in fact, as President Franklin Roosevelt noted in a famous letter to a labor leader in 1937, “All government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service”. The next step for complete reform on this issue is to repeal John F. Kennedy’s Executive Order No. 10988 which recognized a right for federal workers to bargain collectively, but that is a debate for another day.
Other first amendment victories in this term included the previously announced Masterpiece Cakeshop decision, which struck another blow for religious liberty, and National Institute of Family and Life Advocates v. Becerra, which struck down a California law which singled out and required pregnancy service centers that offer an alternative to abortion to notify clients of the availability of low-cost abortions from the state and provide contact information. What is very interesting in Becerra is the strong comments by Justice Kennedy in concurrence with Justice Thomas’s majority opinion: “It is not forward thinking to force individuals to be an instrument for fostering public adherence to an ideological point of view they find unacceptable……It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it………..Freedom of speech secures freedom of thought and belief. This law imperils those liberties”.
Whatever problems traditional conservatives have had with Justice Anthony Kennedy over the past three decades of his service, and I have several (Planned Parenthood v. Casey; Obergefell v. Hodges; Boumediene v. Bush; the affirmative action cases, to name a few), one cannot doubt his dedication to the First Amendment, particularly free speech, and these recent opinions are further evidence of that. Now he is retiring, so what next? Based on President Trump’s short list, I expect we’ll get another Federalist Society-vetted candidate out of the Neil Gorsuch mold, which will move the Court slightly to the right, but it will no longer be the “Kennedy Court” in the sense that he was the swing vote on so many 5-4 decisions. Time and cases will tell whether or not there will be such a swing vote on the new Court.
Of course the left is now in full scale scare campaign mode to enliven their base over the possibility of an overturn of Roe v. Wade, Obergefell, the Obamacare decisions, and other favorites of progressive activism. I wish it weren’t so, but as badly reasoned and decided as these decisions were, I don’t think they will be overturned by a post-Kennedy court, and not entirely because of stare decisis. Why? Because I think that the new court will finally become the “Roberts Court” whose majority under his leadership will protect, above all considerations other than the Constitution, the integrity and consistency of the institution. Of course, some of this thinking is about stare decisis, but it’s more about the notion of “settled law” that has in many ways become organic together with some deference to the intent of the legislative branch (dare I include a touch of public opinion?). I don’t happen to agree with these sentiments when they prevent some necessary repair work on serious mistakes, but on the evidence so far the Chief Justice is less inclined to be disruptive than I might be.
With at least one aspect of this possible shift in emphasis I would agree. That is to make the Court much less consequential in our lives by returning it to its proper role in judicial review and leaving the activism and its drama to the other two branches, the states, and the people. In this respect, the left has much more to worry about than the reversal of a few hot button cases, even Roe, for with another appointment of the quality of Gorsuch, Trump has an opportunity to put an end to five decades of judicial activism and law-making that really began in Griswold v. Connecticut in 1965 with a right to privacy leading to Roe that Justice William Douglas somehow found in the “penumbras formed by emanations” of the Bill of Rights, whatever that means.
In any event, we’re at another milestone and turn in the road, and we should thank Justice Kennedy for his service and for his timely retirement.