Denying Systemic Equality: The Last Words of the Kennedy Court

40 Pages Posted: 10 Dec 2019

See all articles by Daniel P. Tokaji

Daniel P. Tokaji

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: December 9, 2019


This Article examines the Supreme Court’s voting, speech, and religion decisions in the 2017-18 term, Justice Kennedy’s last on the Court, arguing that their unifying feature is the denial of systemic equality. In a series of end-of-term constitutional rights decisions, the Court resolutely insisted on viewing equality in atomistic terms. In so doing, the Court ignored and even exacerbated systemic inequalities in each of these realms. Justice Kennedy was part of the majority in all of these decisions.

Partisan gerrymandering is the classic systemic harm, yet the Court insisted on an individualized showing of injury in holding that Wisconsin plaintiffs had failed to demonstrate standing in their statewide challenge to a state districting plan (Gill v. Whitford). The Court also denied relief for an alleged gerrymander in Maryland (Benisek v. Lamone). In another redistricting case (Abbott v. Perez), the Court upheld Texas’s congressional and state legislative districts, eliding the evidence of systemic injury to Latinx voters. In two critical free speech decisions, the Court struck down a California law imposing certain notification requirements on pregnancy-related clinics (National Institute of Family and Life Advocates v. Becerra), and a state agency fee law for public sector labor unions (Janus v. AFSCME). Both decisions focus myopically on individual speakers, while ignoring the systemic viewpoint discrimination that arises from the Court’s First Amendment precedent. The Court’s disregard for systemic equality is also evident in two high-profile decisions involving claims of religious discrimination. The majority squinted hard to find evidence that the civil rights commissioners discriminated against a Christian baker who refused to make a cake for a same-sex wedding (Masterpiece Cakeshop v. Colorado Civil Rights Commission), while upholding an entry ban on people from six Muslim-majority countries despite overwhelming evidence of discriminatory animus against Muslims (Trump v. Hawaii).

This Article describes and criticizes the last-term Kennedy Court’s inattention to—and in some cases hostility toward—systemic equality. It argues that the Court’s relentlessly atomistic approach to discrimination has obscured and intensified systemic inequalities in the public sphere.

Keywords: Supreme Court, Equal Protection, Redistricting, Gerrymandering, Voting Rights, Right to Vote, First Amendment, Free Speech, Association, Religion, Election Law, Voting Rights

JEL Classification: K00, K40, K49

Suggested Citation

Tokaji, Daniel P., Denying Systemic Equality: The Last Words of the Kennedy Court (December 9, 2019). 13 Harvard Law & Policy Review 539 (2019); Ohio State Public Law Working Paper No. 519. Available at SSRN:

Daniel P. Tokaji (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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