Inroads, Narrowings, and Restrictions

This article addresses the recently retired Justice Anthony M. Kennedy’s legacy. While Justice Kennedy wrote many significant state tax opinions, his opinion in Wayfair is the most important state tax case in 26 years. Nonetheless, constitutional law scholars will almost certainly disregard Kennedy’s state tax opinions when analyzing his legacy. They will instead focus on his opinions on gay rights, abortion rights, the death penalty, affirmative action, and his willingness to cite foreign law. Ironically, due to Justice Kennedy’s decision to retire under a Republican president, the new conservative majority on the Court will likely erode his most liberal decisions (especially if Justice Ruth Bader Ginsburg is forced to leave the Court during the Trump presidency). Outright reversals of these decisions are unlikely, but instead expect a series of inroads, narrowings, and restrictions. Maybe the Wayfair dissenters’ emphasis on stare decisis was merely an eye toward the future — one in which they may have to rely on this principle to protect Kennedy’s opinions that were often not firmly rooted in the text of the Constitution. Unfortunately, above all else, Kennedy’s decision in Citizens United seems likely to live on, despite its cataclysmic and corrosive undermining of our democratic values.