Justice Kennedy’s Hard-Right Turn After (and Because of?) Citizens United

by Beverly Mann

Justice Kennedy’s Hard-Right Turn After (and Because of?) Citizens United

Anyone who watches the Supreme Court closely surely recognizes that Justice Kennedy last year took a hard-right turn, effectively removing himself from the role of swing voter and siding nearly always with the Court’s four-member rightwing bloc in ideologically determined cases. This term, he’s nailing any loose ends left over from last year in order to kill, kill, kill that annoying perception that his vote may be in play on ideological issues. The coffin holding the dead body of Kennedy-as-swing-vote is nailed and lies six feet under.

So the question is why. And pardon me for thinking it has less to do with the specifics of the cases last term and this one than it does with the virulent ongoing criticism of the opinion he wrote last year for the five-member majority in Citizens United v. Federal Election Commission, the infamous opinion that held that corporations are people, too, for First Amendment speech-protection purposes, and since campaign contributions are, in Supreme Court land, speech, legislative attempts to regulate corporate campaign contributions are unconstitutional.

Citizens United was decided on January 2, 2010 and was one of the earliest cases the Court decided in its 2009-2010 term. The Court’s term didn’t end until the last few days of June.

If I’m right that the reason Kennedy’s vote is no longer in play in cases in which political ideologically plays a role is that he’s reacting, whether consciously or subconsciously, to the criticism of Citizens United, we now have three justices whose votes in a large swath of cases the Court is asked to hear are decided largely or entirely by personal grudge. Thomas fairly openly operates based partly on bitterness about his Senate Judiciary Committee confirmation hearing (and slim-margin Senate vote), and Alito—inexplicably, in my view—has said he’s so bitter about his own confirmation hearing that he crosses the street rather than walk the Capitol on the same side of the street as the building. He now does something he apparently did not do as a longtime lower-court federal appellate judge: openly support far-right fund-raising efforts. Or at least he attended one such function.

So one-third of our Supreme Court appears to be using the Court as payback.

Cross-posted at Annarborist