From Iqbal To Citizens United: Kennedy's Biggest Decisions

Law360 (June 27, 2018, 11:15 PM EDT) -- In his three decades on the high court, Justice Anthony Kennedy authored opinions that changed the rules for federal civil litigation, opened the floodgates for corporations and unions to fund campaign advertisements, and reshaped the legal landscape for women and same-sex couples.

Justice Kennedy, who announced his retirement Wednesday, was regarded as a swing vote, bringing a libertarian sensibility to the court that placed great value on individual rights and freedoms and often put him at odds with other Republican-appointed justices. One former clerk, associate professor Sam Erman of the University of Southern California's Gould School of Law, said that he admired Justice Kennedy's knack for nuance and thoughtfulness — and he always encouraged far-ranging conversations as he considered a case.

"I think he liked to feel as though he had tried on the other side before he gave up on it," Erman said. "He kind of wanted to sink in, in a sympathetic way, into what the other side was saying as opposed to just saying, 'These are arguments I have to convince myself are wrong before I go forward.' My sense was that not all justices approach cases that way."

By far his most widely cited decision was Ashcroft v. Iqbal, which rocked the world of civil litigation and has been cited in well over 100,000 court opinions since 2009, according to Ravel Law. Several other opinions of his that touched on habeas corpus law also appeared in criminal matters with great frequency.

Here are some of the respected Justice Kennedy's most impactful opinions throughout the years.

Ashcroft v. Iqbal (2009)

With his opinion in Ashcroft v. Iqbal, Justice Kennedy reshaped the rules for civil litigation in federal court, setting a higher bar for plaintiffs to clear in their complaints.

Iqbal piggybacks on the 2007 high court's antitrust ruling in Bell Atlantic Corp. v. Twombly, authored by Justice David Souter, who wrote that a complaint must contain specific facts that would entitle a plaintiff to relief, rather than just conclusory allegations. Where Twombly laid out the rule, Iqbal expanded it to all civil cases in federal courts, and laid out a framework for applying it.

In the Iqbal case, Justice Kennedy dismissed a complaint filed by Javaid Iqbal, a Pakistani Muslim who was arrested and claimed he was abused in custody following the Sept. 11, 2001, terrorist attacks. The justice wrote that the Second Circuit failed to properly apply Twombly to the case, and that Iqbal's complaint did not contain enough factual allegations to move forward.

"It is the conclusory nature of respondent's allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth," Justice Kennedy wrote. "And Rule 8 does not empower respondent to plead the bare elements of his cause of action, affix the label 'general allegation,' and expect his complaint to survive a motion to dismiss."

The case was emblematic of Justice Kennedy's confidence in judges as gatekeepers to the courtroom, said Darrell Miller, a professor at Duke University School of Law.

The precise effects of the case, however, are difficult to gauge. It is possible that many cases have not been filed because attorneys doubted they could clear the heightened pleading standards, he said.

Iqbal has been enjoyed by defense attorneys as another tool in their arsenal to defeat cases early. Plaintiffs' attorneys, however, have lamented its lasting effects.

"This decision greatly increased the cost of litigation since a motion to dismiss must now be filed and opposed in every commercial case," Stephen Susman, co-founder of plaintiffs trial firm Susman Godfrey LLP, told Law360 on Wednesday. "The requirement that the plaintiff must plead a case that a judge thinks is plausible is just another obstacle that judges have erected to limit the cases a jury can decide."

Citizens United v. Federal Election Commission (2010)

Citizens United freed corporations and unions from laws that held them back from funding political ads, particularly during campaign season. The result was outrage on the political left, and jubilation from pro-business groups like the U.S. Chamber of Commerce.

The opinion fit with Justice Kennedy's long-standing commitment to the First Amendment.

"Speech would be suppressed in the realm where its necessity is most evident: in the public dialogue preceding a real election," Justice Kennedy wrote. "Governments are often hostile to speech, but under our law and our tradition it seems stranger than fiction for our government to make this political speech a crime."

When Kennedy's decision came out, President Barack Obama urged Congress to undo it with legislation. That, however, did not happen.

The decision has resulted not only in more businesses and unions buying political ads, but new strategies for attorneys specializing in campaign-finance counseling to develop and navigate. A Law360 analysis during the last presidential election found that candidates' BigLaw bills had risen dramatically since Citizens United.

Miller, the Duke Law professor, said that the decision takes on new meaning when taken with Kennedy's position in Wednesday's high court decision in Janus v. American Federation, which limited the ability of public employee unions to collect fees of members who object.

"It's fair to say it [favors] corporations, because the kinds of barriers to collective behavior are not the same when it comes to corporations and unions after these two cases," Miller said. "It seems like corporations have a leg up in the political arena when it comes to speech." 

Obergefell v. Hodges (2015) and U.S. v. Windsor (2013)

Justice Kennedy authored a 5-4 majority opinion in Obergefell, which legalized same-sex marriage across the nation, finding that marriage is a fundamental right supported by the Fourteenth Amendment and striking down several states' laws banning the practice for same-sex couples.

"It demeans gays and lesbians for the state to lock them out of a central institution of the nation's society," he wrote. "Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning. The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest."

He laid the groundwork for that blockbuster ruling with 2013's U.S. v. Windsor, which found the federal Defense of Marriage Act unconstitutional. The justice wrote that DOMA ran afoul of the Fifth Amendment because it wrongfully treats same-sex couples "as living in marriages less respected than others."

Also of note was Justice Kennedy's 2003 opinion in Lawrence v. Texas, which found the Lone Star State's anti-sodomy law unconstitutional. This had the effect of striking down other such laws across the nation.

His recent opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission, though it sided with a baker who refused to bake a cake for a same-sex wedding, was carefully crafted to avoid trampling the rights he was among the first to safeguard.

Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)

Justice Kennedy, in an opinion he co-authored with fellow Republican appointees Justices Sandra Day O'Connor and David Souter, upheld the landmark abortion case Roe v. Wade and set a standard for laws that would restrict access to abortions.

That ruling held that states could not create an "undue burden" on a woman faced with the decision of whether to terminate her pregnancy.

"Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage," the justices wrote. "Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code."

--Additional reporting by Jimmy Hoover. Editing by Pamela Wilkinson and Breda Lund.

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