The 14th Amendment, Kennedy and Kavanaugh: What's Next?

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U.S. Supreme Court building in Washington, D.C. Photo: Diego M. Radzinschi/ALM[/caption] On July 9, an ironic confluence of two important events occurred in our constitutional constellation. The first one was the celebration of the 150th anniversary of the adoption of the 14th Amendment to our national Constitution. One notable historian lauding civil rights achievements that have occurred under it, Amanda Bellows in The New York Times, expressed hope that “an even broader interpretation of the 14th Amendment may reshape American society in the 21st century.” The 14th Amendment guaranteed citizenship to recently freed African-American slaves, and provided federal government protection against the denial of fundamental rights and the equal protection of the laws by state and local governments (the federal government was already bound by the U.S. Bill of Rights). Its main purpose was to prevent ongoing discrimination, particularly by southern states, against emancipated slaves who had been subjected to “black codes”—laws that essentially denied them basic civil and political rights. However, the 14th Amendment’s promise was not initially fulfilled, in large part due to narrow interpretations of its protections by the U.S. Supreme Court. For instance, in its seminal 1896 decision in Plessy v. Ferguson, the court set the stage for roughly 50 years of continuing discrimination by blessing the principle of “separate but equal”—the notion that so long as African-Americans were provided public facilities and resources at least nominally equal to those provided white people, the demands of equal protection were met. As "The Great Dissenter" John Marshall Harlan protested in that case, this principle “put[] the brand of servitude and degradation upon a large class of our fellow citizens,” and the “thin disguise of ‘equal’ accommodations … will not mislead anyone, nor atone for the wrong this day done.” With the advent of the civil rights era in the 1950s, however, the Supreme Court began to interpret 14th Amendment protections more broadly. For instance, in 1954 it effectively overruled Plessy in its seminal decision in Brown v. Board of Education of Topeka, Kansas, ruling that racially separated public schools violated equal protection. Another foundational decision was Roe v. Wade, where the high court interpreted that amendment’s command that the government not deprive a person of “liberty” without due process to grant women a fundamental right to obtain a pre-viability abortion. This expansion of 14th Amendment protections extended well into the 1980s, until the time that President Ronald Reagan began staffing the high court with Republican appointees and elevated noted conservative William Rehnquist to be chief justice in 1986. Under Rehnquist’s leadership, the court began cutting back somewhat on these expansive interpretations, but Republican moderates such as Justices Sandra Day O’Connor and Anthony Kennedy prevented a full-fledged contraction campaign by becoming key swing votes on the court. A key example was their lead decision in Casey v. Planned Parenthood, where to the dismay of many conservatives, they rejected an explicit request by the Bush administration to overrule Roe (instead opting for a compromise that gave the government a bit more latitude to impose abortion regulations). With O’Connor’s retirement in 2004, Kennedy became the key lynchpin on 14th Amendment rulings, since the remaining members of the court were essentially split evenly along liberal and conservative lines. While Kennedy did go along with a contraction of 14th Amendment rights in certain areas such as the rights of criminally accused, in others he joined the liberal wing to dramatically expand them—particularly in the area of same-sex rights. This expansion came to a head with an opinion that Kennedy likely regards as his magnum opus, finding a fundamental right of same-sex marriage in the amendment’s protection for due process liberty rights. Overall, one can fairly say that Kennedy prevented a return to the early era of narrow interpretations of the 14th Amendment’s guarantees. This all brings us to the second major event on July 9 related to that amendment. President Donald Trump nominated noted conservative Brett Kavanaugh, a judge for the U.S. Court of Appeals for the D.C. circuit—a judge who Senate Republicans are almost certain to swiftly confirm, to replace the retiring Kennedy. For the first time in roughly a century, this will give the court a majority of five solid conservative votes to begin a major narrowing of the broad 14th Amendment interpretations Kennedy in part helped keep alive. One can expect critical changes to result. For one, whereas Kennedy was willing to look to an “emerging societal awareness” to recognize new due process liberty rights such as same-sex marriage, the conservatives are staunchly against this approach. In their view, a claimed liberty right must be deeply rooted in the nation’s history and traditions to warrant recognition. Hence, not only will newly-claimed LGBT rights be dismissed out of hand (including any expansion of gay marital rights to areas such as adoption), but one can expect that abortion rights will be severely curtailed if not outright abandoned through the overruling of Roe. For another, whereas Kennedy was inclined to read the demands of equal protection pragmatically to uphold affirmative action programs designed to remedy racial disparities in public education, the conservatives have shown every inclination to adhere to the view expressed by Chief Justice John Roberts Jr. that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Moreover, while Kennedy was willing to employ equal protection to seriously scrutinize alleged LGBT discrimination, the conservatives generally believe that community is adequately covered by protections it is able to secure through the political process. There are other important 14th Amendment areas where Kennedy’s moderating influence will likely yield to stricter conservative stances. For instance, when individual property or religious liberty rights conflict with broader community interests in, respectively, land use restrictions or laws barring LGBT discrimination in the marketplace, there is no question that those individual rights will stand on much firmer ground. So, looking back, July 9 was a paradoxical day for the 14th Amendment. For some, it was a day to celebrate the broad civil rights expansion that has been achieved under it. For others, it was a day to mark the start of a broad retrenchment in that expansion. But for all, it was a reminder of our nation’s fundamental commitment to protecting liberty and equality, goals not always easily reconcilable as the life of that amendment has shown. Barry P. McDonald is a professor of constitutional law at Pepperdine University in Malibu, California, and served as a law clerk to the late Chief Justice William H. Rehnquist.