The Importance of Justice Kennedy’s “Swing Vote”—As Shown by Recent 5-4 Decisions Involving Unions

Brandon Jeter – Known for casting the often critical “swing vote,” Justice Anthony Kennedy has played a particularly crucial role in the development of modern Supreme Court jurisprudence. With his retirement this Summer, and a vacant Supreme Court seat presumably soon to be filled, the future of the Court is a focus of much of the country’s attention.

This post will briefly describe two recent 5-4 Supreme Court decisions which seem to highlight the importance of Justice Kennedy’s role on the Court.  Both cases, often referred to as landmark decisions, each involve unions, of a sort.  The first case, Janus v. AFSCME, is the most recent case in which Justice Kennedy was the tie-breaking vote siding with the more conservative-leaning members of the Court.  The second case, Obergefell v. Hodges, is the most recent case in which Kennedy was the tie-breaking vote siding with the more liberal-leaning members of the Court.

Janus v. AFSCME

Described by the New York Times as a “sharp blow to labor unions,” Janus v. AFSCME overruled more than four-decade-old precedent in holding that public-sector employees may not be compelled to pay union dues after having refused membership in a trade union.  The Court rejected the notion that an employee may be compelled to pay union dues because of the benefits he/she may receive from collective bargaining.  Instead, the Court found that “fair share” agreements, at least regarding public sector workers, violate the First Amendment.  While Justice Alito, writing for the Majority, recognized that the decision would bring financial burden to public sector unions, he nonetheless asserted that a contrary holding, and the now overruled precedent, was inconsistent with the First Amendment.

Obergefell v. Hodges

Almost three years before Janus, to the day, Justice Kennedy authored the Majority Opinion in the landmark civil rights case, Obergefell v. Hodges.  Also, overruling more than four-decade-old precedent, Obergefell held that under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment, same-sex couples had a fundamental right to marry.  Kennedy professed, “[n]o union is more profound than marriage, for it embodies the highest ideal of love, fidelity, devotion, sacrifice, and family…. It would misunderstand these [same-sex couples] to say they disrespect the idea of marriage.  Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves.”

Unions aside, Janus and Obergefell seem to reflect some of the themes that are central to discussions regarding the importance of Kennedy’s replacement on the Supreme Court.  Among them—will Kennedy’s replacement follow suit as the often critical “swing vote?”  And if not, how will the jurisprudence of a potentially very different Supreme Court unfold, especially given the Court’s willingness to overturn, in the case of Janus and Obergefell, more than four-decade-old precedent.


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