At annual Supreme Court Year in Review discussion, panelists examine Justice Kennedy’s legacy and how the Court is wielding the First Amendment

Following a US Supreme Court term marked by controversial First Amendment rulings and the announcement of Justice Anthony Kennedy’s retirement, the 92nd Street Y (92Y), in partnership with NYU Law’s Forum on Law Culture & Society (FOLCS), held its third annual discussion on “The Law of the Land: the Supreme Court’s Year in Review.” The July 9 event was moderated by Distinguished Fellow Thane Rosenbaum, the director of FOLCS, and included Chief Justice Earl Warren Professor of Constitutional Law Kenji Yoshino, who has been a panelist at this event each year. The evening included a livestream of President Trump’s nomination of Brett Kavanaugh to the US Supreme Court.

Much of the discussion centered on the impact of Justice Kennedy’s retirement. Both Yoshino and panelist Roberta Kaplan—who in the landmark US v. Windsor case persuaded the Court to overturn federal legislation that defined marriage as a relation between a man and a women only—noted that Kennedy had been instrumental in obtaining equality for the LGBTQ community. “[Kennedy] had a very idiosyncratic and at times unpredictable jurisprudence,” said Kaplan, “but in the area of gay rights, probably no Supreme Court justice has dominated an area the way that Justice Kennedy dominated all the cases having to do with equal dignity of LGBT people.” Kennedy penned the majority opinion in Windsor and three other cases that upheld LGBTQ rights in the United States.

Another member of the panel, Ron Klain, an MSNBC commentator and former chief of staff to vice presidents Al Gore and Joe Biden, noted that while Kennedy has largely voted with the Republican majority over the last several years, the unpredictability of his vote acted as “a constraining force on the move of the law to the right. The four very conservative justices probably declined to bring some cases to the Supreme Court because they didn’t know where Justice Kennedy’s vote would be,” Klain said.

The panelists also discussed what Kaplan called the “threat of weaponization [of] the First Amendment,” a reference to Justice Elena Kagan’s dissent in this year’s Janus v. AFSCME. In Janus, the Court limited the power of labor unions to collect fees from non-union members on the grounds that such fees violate non-union members’ First Amendment right to freedom of speech, essentially serving as a forced endorsement of the union’s political positions. In her dissent, Kagan stated that the Court majority was “weaponizing” the First Amendment to intervene in economic and regulatory policy.

Kaplan said this “weaponization” also played out in NIFLA v. Becerra, when the Supreme Court handed down a 5-4 ruling stating that California can’t require crisis-pregnancy centers, which counsel pregnant women not to have abortions, to post signage about abortion services. Kaplan said that this decision seems to mark a new era of the Court overturning regulatory legislation on the grounds of First Amendment violations. “I’m particularly worried about the case,” Kaplan said, “because it bodes very, very poorly for the statutes that are now being passed prohibiting gay conversion therapy. I don’t know how those statutes will survive under this ruling.”  

Yoshino said that NIFLA might open the door to ending legislation in 18 states that require doctors to give women certain information about their pregnancies, such as unsubstantiated statistics about higher rates of breast cancer, depression, and suicide following abortions. “[NIFLA] could be used as a shield,” Yoshino said, “by the physicians that don’t want to say false things to their patients to be able to assert against the state that is requiring them to lie.”

Among other cases discussed was the Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the Court held that a baker was legally allowed to refuse to create a custom wedding cake for a same-sex couple due to his religious belief. Yoshino said that this case was decided on the very narrow grounds of religious animus on the part of the Colorado Civil Rights Commission, and did not create precedent about the intersection of freedom of speech, freedom of religion, and anti-discrimination. “Masterpiece Cake,” Kaplan said, “was a ginormous punt.”

The panel ended promptly at 9 p.m. so that the panelists and audience could watch Trump’s livestreamed nomination of Brett Kavanaugh to the US Supreme Court. Before the livestream, Klain expressed concern about the nomination of a hardline Republican to the Court. “I think it’s easy to underestimate how radically the Court could shift with just a shift of one vote,” he said.

Watch a video of their discussion: 

Posted August 16, 2018