Justice Scalia's cruelest irony: This is the real impact of a 4-4 Supreme Court

A deadlocked Supreme Court and obstructionist GOP means less influence for Justice Kennedy, the longtime swing vote

Published May 28, 2016 10:30AM (EDT)

FILE - In this Oct. 18, 2011 file photo, U.S. Supreme Court justice Antonin Scalia looks into the balcony before addressing the Chicago-Kent College Law justice in Chicago. A letter from the Supreme Court's doctor says Scalia suffered from coronary artery disease, obesity and diabetes, among other ailments that probably contributed to the justice's sudden death. (AP Photo/Charles Rex Arbogast, File) (AP)
FILE - In this Oct. 18, 2011 file photo, U.S. Supreme Court justice Antonin Scalia looks into the balcony before addressing the Chicago-Kent College Law justice in Chicago. A letter from the Supreme Court's doctor says Scalia suffered from coronary artery disease, obesity and diabetes, among other ailments that probably contributed to the justice's sudden death. (AP Photo/Charles Rex Arbogast, File) (AP)

Justice Antonin Scalia's death dramatically affected the Supreme Court, the course of constitutional law, and the entire country. But there is one person whose career and influence was changed the most the moment Scalia passed away. One person who, in one sense, was Justice Scalia’s foe, but in another, a much-needed ally. That person is Justice Anthony Kennedy, and his changed status tells us something important about the current evenly divided four-four Supreme Court.

The numbers are staggering. From 1988 to 2016, Kennedy was the most important judge, and maybe the most influential government official, in the United States. During that time, Kennedy was in the majority of five-to-four Supreme Court decisions approximately 75% of the time, more than any other Justice (Sandra Day O’Connor’s rate for her career was 65%). Since 2010, Kennedy’s figure is a whopping 85%.

Everyone remembers that it was Roberts who switched sides in the first Obamacare case, but few remember that the Chief’s vote in that case was the first time in the six years after he was confirmed that he ever voted with the liberals in a five-to-four case. In the first full term of the Roberts Court, for example, a momentous one involving abortion, affirmative action and freedom of speech and religion cases, there were 24 five-to-four cases and Kennedy was in the majority 100% of the time.

Moreover, if we only look at nationally important constitutional law issues, with the exception of just a few isolated cases, Kennedy’s Constitution has been America’s Constitution. If it weren’t for Kennedy’s swing votes, states could now impose term limits on members of Congress, dramatically altering our federal government; public high schools could have official Christian prayers at graduation ceremonies and football games (as many state legislators are now allowed to do at their official sessions thanks to Justice Kennedy); the Second Amendment would not protect an individual right to own guns; the state and federal governments would have much more latitude to regulate the billions of dollars spent on state and federal elections; the Voting Rights Act would still be constitutional, putting in jeopardy Republican efforts to disenfranchise people of color; and, of course, gays and lesbians would still be second-class citizens under the law (there have been four Supreme Court decisions protecting gay rights, and Justice Kennedy has written every one). Kennedy is the only Justice on the Court who cast a winning vote in each and every one of those cases. America would be a very different country had Justice Kennedy voted the opposite way in just a few of those cases.

Other than a handful of cases involving criminal defendants (where Scalia would occasionally vote with the liberals), when Kennedy voted with the conservatives over the last 28 years, so did Scalia. But, when Kennedy voted with the liberals in five-four cases, Scalia was almost always dissenting. And what infuriated Scalia even more than Kennedy’s votes was his changing views. Jeffrey Rosen once accurately labeled Kennedy the “great agonizer,” partly because Kennedy frequently backtracked from conservative doctrines that Justice Scalia strongly favored. For example, Kennedy voted to effectively overturn Roe v. Wade in 1989 when there were only four votes on the Court for that result. But, in Planned Parenthood v. Casey, decided just three years later, Kennedy changed his mind and voted to affirm Roe after Justice Clarence Thomas replaced Justice Marshall and there were four Justices other than Kennedy ready to return the issue of abortion to the states. Justice Scalia’s dissent in Casey is certainly one of his angriest, and that is saying a lot.

That same 1992 term, Kennedy voted to prohibit high school graduation prayers. Because he had previously voted to uphold religious symbols on governmental property (such as menorahs and nativity scenes in public buildings), Scalia accused him of having “changeable philosophical predilections” and of adopting a “psycho coercion test, which suffered “the double disability of having no roots whatever in our people's historic practice, and being as infinitely expandable as the reasons for psychotherapy itself.”

But it was in gay rights cases that Scalia offered his most heated attacks on Justice Kennedy. In Lawrence v. Texas, which overturned the infamous Bowers decision allowing states to criminalize same-sex sodomy, Scalia accused Kennedy’s majority opinion of being “the product of a law-profession culture that has largely signed on to the so-called homosexual agenda.” Scalia also argued that “the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.”

And, in Obergefell v. Hodges, he called Kennedy’s opinion “a threat to democracy,” referred to all of Kennedy’s gay rights decisions as the “practice of constitutional revision by an unelected committee of nine, always accompanied … by extravagant praise of liberty,” and concluded that “to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”

Kennedy’s constitutional preferences have shaped our country for a long time. In 5-4 cases where his vote was uncertain, and his was almost always the vote up for grabs, the others had to come to him and shape their opinions to keep or garner votes. But now, with Scalia’s death, Kennedy needs at last one liberal to switch sides for him to form a five-person majority to achieve a conservative result -- but he can still effectuate “social transformation” to the left simply by siding with the four liberals.

This new dynamic is playing out this term. Had Scalia lived, the Court almost certainly would have issued a conservative ruling against mandatory fees for public-sector unions (the Justices divided 4-4), and the Obama Administration would most likely have lost two important cases involving immigration and the Affordable Care Act (the latter was remanded to the lower courts and we are awaiting the former). But with four Justices to his left and only three to his right, Kennedy can now swing effectively in only one direction, and it is not the direction Scalia would have preferred. There is a strong chance Kennedy will side with the liberals in this term's huge abortion case, demonstrating this new one-way ratchet.

In one sense, perhaps an emotional one, Scalia might be pleased that Kennedy no longer has the power to move the Court and the country in whatever direction he wants it to go. But, after more reflection, Scalia would surely be dismayed to learn that given the current personnel on the Court, and the likelihood that this equally divided Court might be with us for quite a while, Kennedy’s influence has been whittled down (in high-profile national stakes cases) to voting for four-to-four ties with the other conservatives, thus leaving things undecided at our highest Court, or voting with the liberals to move our country to the left. For Scalia, that must indeed be a cruel irony.


By Eric Segall

Eric Segall is the Kathy & Lawrence Ashe Professor of Law at Georgia State University College of Law. He is the author of "Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices are Not Judges." He has written numerous law review articles on constitutional law and other legal topics. He appears regularly on "StandUp With Pete Dominic" on XM Radio and tweets at @espinsegall.

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