The coming Supreme Court term is poised to feature more high-drama disputes than other recent terms, but legal experts expect to find a familiar culprit wielding the final say: Justice Anthony Kennedy.
Kennedy attracted attention at the end of the last term amid speculation he could retire from the high court, but he may draw more eyes to his votes on crucial cases involving discrimination, religious liberty, free expression, and executive power in the term that starts next month.
Several of the October term’s pending disputes “happen to be falling right on that fault line for Kennedy in many of the areas that interest him most,” said Jonathan Turley, a George Washington University law professor, at his school’s preview of the term this week.
“As is always the case, this term is coming down to a court of one on critical issues,” Turley said. “It’s also for years why I’ve argued that we should expand the Supreme Court. I think one more year of having a court of one is ridiculous.”
While any number of factors could affect Kennedy’s thinking, former U.S. Solicitor General Greg Garre thinks Justice Neil Gorsuch’s addition to the high court could prove defining.
“It’s often said that when you have one new justice, you have an entirely new court, and the court behaves in weird ways when new people come,” said Garre, who served during President George W. Bush’s administration, at George Washington University. “When Justice Thomas came on the Supreme Court, everyone thought the court was going to become much more conservative. But strangely enough, what he did was he pushed Justice O’Connor to the left.
“And so I think one of the really interesting to see, things to see about this term is Justice Gorsuch being on the court, one of Justice Kennedy’s former law clerks, is he going to sort of make Justice Kennedy more comfortable being with the strong majority of five because the conservatives really can only go so far as Justice Kennedy is willing to go? Or will all these contentious cases and will it, the push on the Right, actually end up pushing Justice Kennedy more to the left?”
One controversy where Gorsuch’s influence on Kennedy will be closely watched is President Trump’s travel ban.
The high court’s focus on the text of the executive order versus the campaign statements and tweets of Trump could determine how the Supreme Court rules. Turley said he thinks the justices could end up with “sticker shock” when evaluating the case.
“I have to admit I would not sign on to the use of these [Trump] statements the way the lower courts did because I’m not too sure what the limiting principle is,” Turley said. “We’re sort of two generations past those campaign statements … but the question for a judge is that when you get sticker shock is when you’re sitting there and you go like, ‘OK, well, is this what it’s going to be like now? We’re going to start to cherry pick statements and look into the motivations of a president?'”
Garre said he thinks “the president is on very strong footing if you just look at the text of the statute.” Whether Kennedy agrees with Garre may determine the outcome of the case and reshape immigration policy.
Another blockbuster case where Kennedy’s vote figures to be critical is Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, featuring a Colorado baker refusing to make a cake for a same-sex marriage. Kristen Waggoner, a top Alliance Defending Freedom lawyer who is helping represent the Colorado baker, said Friday she thinks Kennedy could be part of “broad support” for her client on the court.
At an ADF-sponsored preview of the Supreme Court at the global law firm Jones Day in Washington on Friday, Waggoner identified Elena Kagan and Stephen Breyer as two justices who could cross the ideological divide in ruling for the baker.
ACLU deputy legal director Louise Melling countered at ADF’s Friday preview that Kennedy would not view the case similar to others supported by ADF. “I don’t imagine this being something other than 5-4.”
“This case isn’t about a cake. This case is about fundamental questions about how our nation will, what the court will decide about our anti-discrimination laws,” Melling said Friday. “ADF is focusing on the cake, we’re focusing on the — as the law does — laws regulating conduct. The laws regulating the conduct of whether I will sell it to you.”
“First of all, that’s not what the law does,” Waggoner replied, arguing that “it’s not the who, it’s the event, and it’s the expression.”
“We want the right for all people, all creative professionals to be able to express themselves consistent with their convictions, even if we disagree with those convictions,” Waggoner said.
In handicapping how Kennedy may act on the Masterpiece case, Jones Day partner Yaakov Roth told ADF’s audience, “My guess is that Justice Kennedy will see this as he often does as a case of government encroachment upon individual liberty.”
“The other gay rights cases that he’s written have really pushed back against what he viewed as government interference, government denigration of a particular part of society,” Roth said Friday. “They were all cases where you have the same-sex individual or couple against the government and the government lost. Here you have the government pitted against the baker and I think he’s going to see it in those terms.”
Roth added that he thought the case would prove to be about “are we as a society going to turn every observant Christian, Jew, Muslim, into a member of the KKK? Is that how we want to handle this tension in our society?”
