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The retirement of the U.S. Supreme Court’s swing voter, Anthony Kennedy, ensures that his seat will be occupied by another justice who sides with corporate rights.
The departure of Kennedy, 81, after more than three decades on the high court, gives President Donald Trump an opportunity to shape the Supreme Court for decades to come — particularly since he already put one nominee, Neil Gorsuch, on the bench.
“Trump’s judicial appointments tend to side with business and against regulation,” said Adam Winkler, a UCLA Law professor and author of “We the Corporations: How American Businesses Won Their Civil Rights.”
Winkler added, in an email message to Yahoo Finance: “This term, Justice Gorsuch voted with the Chamber of Commerce in 9 of its 10 cases. We can expect more of the same from Kennedy’s replacement.”
‘Very solid on a lot of business issues’
Justice Kennedy is known as a swing voter who has sided with liberals on many social issues, like same-sex marriage, while casting votes with conservatives on cases involving businesses.
“Kennedy was obviously very solid on a lot of business issues. He was a pretty consistent vote,” Carter Phillips, a partner at Sidley Austin, told Yahoo Finance. Phillips, who who has argued 76 cases before the Supreme Court, noted that Kennedy is a particularly strong proponent of corporations’ First Amendment rights.
In 2010, Kennedy notably wrote the majority opinion in Citizens United v. Federal Election Commission, which ruled that the federal government could not ban corporations from spending money on elections. “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech,” Kennedy wrote.
More recently, Kennedy invoked the First Amendment in a decision that narrowly sided with a Colorado baker who refused to bake a cake for a same-sex wedding. Phillips noted that Kennedy was able to give businesses new weapons to fight regulation.
Of course, not everybody agrees with the notion that the First Amendment should apply to corporations, and Phillips noted that the First Amendment has “become expansive.”
In addition to his rulings to protect corporate speech, Kennedy was also known for his votes to curb Congress’s regulatory power. For example, in a 2009 case, Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, Kennedy wrote a majority opinion that allowed an Alaskan mining company to dump waste in a lake — ruling against environmental groups that claimed a permit allowing the discharges violated the Clean Water Act.