Retiring Supreme Court Justice Anthony Kennedy was no champion of voting rights. To the contrary, he played a pivotal role in gutting key provisions of the Voting Rights Act, upholding voter suppression laws and giving a green light to racially discriminatory gerrymandering. And yet his replacement could make things even worse.
This dual reality — that Kennedy did much damage and that his successor is likely to be even more harmful — is a measure of the success of the radical conservative legal movement that has given rise to judges like those on President Donald Trump’s short list of potential Supreme Court nominees.
“Replacing Kennedy with a justice who shares Trump’s extreme politics would leave millions of Americans vulnerable to voting discrimination for generations.”
We’ve already seen the impact Supreme Court decisions can have on voting rights. Five years ago, Kennedy joined Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito in Shelby County v. Holder, which dramatically weakened our ability to enforce Voting Rights Act protections. Literally within hours of the court ruling, states began enacting or enforcing laws to make it harder for people, especially people of color, to exercise their right to vote.
In the term just completed, Kennedy joined the court’s conservative majority to reverse lower court rulings against racially discriminatory gerrymandering in Texas.
In that case, Abbott v. Perez, Kennedy joined Alito’s opinion saying the legislature’s good faith “must be presumed,” even though lower courts found clear evidence that such a presumption was false. As Justice Sonia Sotomayor noted in her dissent, the ruling does “great damage” to the right of equal participation in the political process.
As damaging as these rulings are, things can always be worse. Kennedy has at least been willing to consider the impact of outrageously unfair partisan gerrymandering, something the rest of the court’s conservatives have had no willingness to take on.
And in Abbott, Thomas and Justice Neil Gorsuch signed a concurring opinion staking out the extreme position that the Voting Rights Act does not apply to redistricting whatsoever and therefore could never be used to challenge even the most blatant racially discriminatory gerrymandered voting districts. Kennedy wasn’t willing to go that far, but his replacement would be if in the mold of Gorsuch.
Replacing Kennedy with a justice who shares Trump’s extreme politics would leave millions of Americans more vulnerable to voting discrimination for generations. And that’s especially true given Trump’s intention to nominate a judge who can serve “40 years, 45 years,” as he said at a political rally just after Kennedy’s retirement was announced.
When he campaigned, Trump pledged to choose his Supreme Court nominees from a list approved by two organizations devoted to pushing an extreme agenda in our laws and courts: the Heritage Foundation and the Federalist Society. The Heritage Foundation champions voter suppression strategies that disenfranchise minority voters as well as low-income voters, students and others. And of course, Trump has repeatedly lied about voter fraud.
“There’s no real principle that justifies laws designed to make it harder for people to exercise the most basic right of citizenship, the right to vote.”
It is deeply troubling that Trump’s nominee to replace Kennedy will be, like Gorsuch, plucked from a toxic short list of individuals who meet Trump’s extreme agenda.
There’s no real principle — beyond the protection of the wealthy and powerful — that justifies laws designed to make it harder for people to exercise the most basic right of citizenship, the right to vote.
The same movement pushing voter suppression has weakened our democracy in other ways as well, often with Kennedy’s help. In the most recent session, he went along with Gorsuch to overturn a 40-year-old precedent and weaken collective bargaining rights.
And yet on some issues, particularly LGBT rights, Kennedy was the fifth and decisive vote for dignity and equality. And on other important civil rights issues, including educational opportunity and women’s access to health care, Kennedy played a limiting role, reducing the harm that the court’s most conservative judges would have inflicted if he had been willing to let them go as far as they would like. He also supported some significant criminal justice reforms, encouraging limits on the use of the death penalty and the imposition of solitary confinement. Trump’s next nominee will likely be in the mold of Gorsuch, which should frighten anyone who cares about our democracy.
Writing for The Atlantic, Vann Newkirk recently warned that “it’s possible that Kennedy’s retirement could hasten what appears to be the imminent collapse” of federal voting rights enforcement. You could say the same about other issues relating to civil rights and the health of our democracy.
That’s why Americans must demand that their senators use every tool to stop Trump’s takeover of the Supreme Court. Americans deserve better. And we must demand it from our senators.
Kristine Lucius is the executive vice president for policy for the Leadership Conference on Civil and Human Rights.