Kennedy’s seat: What’s at stake

How might it matter if Justice Anthony Kennedy is replaced by Brett Kavanaugh? Most obviously, it would mean replacing a justice who is about to turn 82 with one who is 53 years old. It will mean that this seat on the U.S. Supreme Court will be held by a staunch conservative justice for likely 30 or more years.

Overall, Kennedy has been a conservative justice and Kavanaugh, if confirmed, will vote the same way as Kennedy in most cases. Last term, for example, there were 18 5-4 decisions and Kennedy voted with the conservative justices -- John Roberts, Clarence Thomas, Samuel Alito and Neil Gorsuch -- in 13 of them and voted with the liberal justices in none of them. In many of the most controversial areas, Kennedy has been solidly with the conservatives, such as in striking down campaign finance laws, in using the Second Amendment to protect gun rights, and in favoring business interests over those of consumers and employees.

But I can identify five areas where Kennedy has consistently been with the liberals. This is where replacing Kennedy with Kavanaugh has the potential for making a huge difference in the law.

Abortion Rights. In Planned Parenthood v. Casey (1992), Kennedy was the fifth vote to affirm Roe v. Wade. Two years ago, in Whole Women's Health v. Hellerstedt, Kennedy was the fifth vote to strike down a Texas law imposing restrictions on abortions. Roberts, Thomas, Alito and Gorsuch never have voted to strike down any law limiting access to abortions. At the very least, they are likely to uphold the myriad of laws that states have adopted to restrict access to abortion. My own prediction is that they would vote to overrule Roe v. Wade. Assuming that Kavanauagh would join them, it is estimated that about half the states will prohibit all abortions.

Affirmative Action. In Fisher v. University of Texas, Austin (2016), Kennedy wrote the opinion upholding the University of Texas' affirmative action program. He spoke powerfully of the need for diversity in colleges and universities and the importance of deference to schools as to how to achieve it. Justice Alito wrote a vehement dissent, joined by Roberts and Thomas. I have no doubt that Roberts, Thomas, Alito and Gorsuch will vote to eliminate all affirmative action programs. In 2007, in Parents Involved in Community Schools v. Seattle School Dist. No. 1, Roberts emphatically declared that the Constitution requires that the government be color-blind, which, of course, allows no possibility of race-conscious programs to remedy past discrimination and to enhance diversity. If Kavanaugh joins them, it will have a devastating effect on diversity at campuses across the country.

Gay and Lesbian Rights. Kennedy wrote the majority opinion in every case expanding rights for gays and lesbians: Romer v. Evans (1996), Lawrence v. Texas (2003), United States v. Windsor (2013), Obergefell v. Hodges (2015). I have heard many remark that the Supreme Court would not reconsider Obergefell, which held that laws prohibiting same-sex marriage denied equal protection and violated the right to marry. I think this prediction fails to account for Chief Justice Roberts' scathing dissent in Obergefell, the only dissent he has read from the bench since coming onto the court in 2005. A year ago, in Pavan v. Smith, Justice Gorsuch wrote a dissenting opinion, joined by Thomas and Alito that sharply criticized Obergefell. Kavanaugh well could be a fifth vote to reconsider that decision.

Beyond that many issues are likely to arise with regard to LGBT rights. Does employment discrimination based on sexual orientation violate Title VII's prohibition of sex discrimination? May businesses discriminate against gays and lesbians based on the religious beliefs of the businesses' owners? What is the constitutional protection for transgender individuals?

Exclusionary Rule. In 2006, in Hudson v. Michigan, Justice Antonin Scalia wrote an opinion calling for the elimination of the exclusionary rule as a remedy when police violate the Fourth Amendment. The exclusionary rule provides that evidence obtained as a result of an illegal search or arrest cannot be used as evidence. Kennedy was the fifth justice in the majority and refused to go that far; he said that the "continued operation of the exclusionary rule is not in doubt." But Kavanaugh could be the fifth vote to change the law in this area.

Death Penalty and Criminal Punishments. Kennedy never joined with those justices who argued that the death penalty is inherently unconstitutional cruel and unusual punishment. But Kennedy wrote the majority opinion in Roper v. Simmons (2005) holding that the death penalty is unconstitutional if used for crimes committed by juveniles. In 2008, he wrote the majority opinion in Kennedy v. Louisiana (2008), holding that the death penalty cannot be used for the crime of child rape. In Graham v. Florida (2010), Kennedy wrote the opinion holding that it is cruel and unusual punishment to impose a sentence of life without parole for non-homicide crimes committed by juveniles. Two years later, in Miller v. Alabama, he joined Justice Elena Kagan's majority opinion that it violates the Eighth Amendment to have a mandatory sentence of life without parole for homicides committed by juveniles.

These, then, are the critical areas for the Senate Judiciary Committee to focus on in the confirmation hearings. Kavanaugh should be asked how he would have voted had he been on the court when these prior cases were decided.

But I am sure he will not answer such questions. In fact, he is likely to follow the script of Neil Gorsuch, who refused to answer any questions about his views concerning specific areas of law. Gorsuch would not even answer questions about Brown v. Board of Education.

The Senate, of course, could insist on answers or refuse to confirm the nominee. But with Republicans holding a 51-49 majority in the Senate, this seems unlikely. I hope I am wrong, but I expect confirmation hearings that will tell us little about Kavanaugh's views on these critical areas or much of anything that is useful.

None of us should be surprised, though, when he votes to change the law in each of these areas. There is a reason why he is at the top of the Federalist Society's list for the Supreme Court and why he was nominated by Donald Trump.