Look Beyond 5-4 Decisions for Kavanaugh's Impact on Supreme Court, Says Political Scientist Carol Nackenoff

Carol Nackenoff

Wondering about the impact Judge Brett Kavanaugh might have on the Supreme Court? It’s important to look beyond the 5-4 decisions in which retiring Justice Anthony Kennedy sided with more liberal colleagues, says Richter Professor of Political Science Carol Nackenoff.

“The half-hearted embrace of Justice Kennedy by liberals rests on decisions in relatively few areas of law,” says Nackenoff, an authority on constitutional law and the Supreme Court. “Everyone points to gay rights and abortion, and Roe v. Wade’s privacy and undue burden standards are especially vulnerable. Gay rights may be sooner tempered by more decisions upholding religious-conviction exemptions from compliance with anti-discrimination laws.”

Kennedy authored every major Supreme Court ruling on gay rights since joining the court, she adds, “finding animus the only explanation for a number of laws singling out gays and lesbians for differential treatment.”

This approach paved the way for the gay marriage decision in Obergefell v. Hodges (2015), Nackenoff says. She also cites Kennedy’s “expansive understanding of liberty interests”; the Planned Parenthood v. Casey joint opinion (1992)—partially repeated in Lawrence v. Texas (2003), which repealed sodomy laws—found that “these matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the 14th Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

“Central attributes of personhood should not be subject to state compulsion,” Nackenoff says. “For Kennedy, equal protection of the law was an evolving concept.” 

Kennedy’s vision of liberty interests and of equal protection will not live on in new majority decisions, Nackenoff says. His understanding of cruel and unusual punishment is also unlikely to survive; decisions such as Atkins v. Virginia (2002), barring execution of those considered mentally disabled, and Roper v. Simmons (2005, written by Kennedy), prohibiting capital punishment for those who were under 18 when they committed their crimes, are vulnerable, she adds.

“Kennedy’s votes on key Guantanamo Bay detainee cases—decisions that at least modestly limited executive power and upheld the right of habeas corpus—will be vulnerable to challenge,” Nackenoff says.

Also up for revisitation, according to Nackenoff: “Kennedy’s establishment clause position barred school prayer because young people might be coerced. A key Kennedy opinion in 1992, loathed by many conservatives, plus an additional school prayer decision, are likely to fall.” 

Kennedy was a staunch opponent of race-based affirmative action, Nackenoff notes, despite his 2016 opinion in Fisher v. University of Texas, a narrow holding; the ability of universities to take race into account in admissions decisions will likely be further limited or eliminated, she says.

But recent campaign-finance decisions will stand, Nackenoff says.

“Kennedy supported robust First Amendment speech protections for campaign contributions and expenditures,” she says, “and wrote the landmark campaign finance decision in Citizens United v. FEC (2010), extending to corporations such protections and declaring that Congress could only regulate quid pro quo corruption, and not the appearance thereof.”

At Swarthmore, Nackenoff teaches American politics, constitutional law, environmental politics, and political theory. She is the author of Oxford Bibliographies Online Guide to the Supreme Court and The Fictional Republic: Horatio Alger and American Political Discourse (Oxford University Press, 1994), and is a co-editor and contributor to Jane Addams and the Practice of Democracy (University of Illinois Press, 2008) and Statebuilding from the Margins (University of Pennsylvania Press, 2014). Her current research project is a manuscript on the contested meaning of citizenship in the United States from 1875 to 1925, a period that witnessed extensive conflict over the extent and terms of incorporation of women, African-Americans, Native Americans, workers, and immigrants into the polity.