Anthony Kennedy's retirement threatens to upend the Supreme Court on social issues, but big business will hardly notice

Key Points
  • Justice Anthony M. Kennedy's decision to retire from his post on the Supreme Court at the end of July is a seismic event for social liberals, but likely won't have a large effect on American businesses.
  • On issues that matter to large U.S. businesses — like how they treat their employees and who they are prohibited from discriminating against — Kennedy's successor will likely vote the same way as Kennedy would have,
  • In an upcoming term, the court is expected to address the constitutionality of the Consumer Financial Protection Bureau and whether companies are allowed to discriminate based on sexual orientation.
Supreme Court Justice Anthony Kennedy
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Supreme Court Justice Anthony M. Kennedy's decision to retire from his post on the high Court at the end of July is a seismic event for social liberals.

A crucial swing vote on the court, Kennedy penned major rulings protecting free speech, limiting the death penalty, defending immigrants and supporting affirmative action. His legacy as a defender of the rights of gays and lesbians is the strongest in the court's history.

But the effect of the 81-year-old justice's retirement on economic issues? American businesses may not even notice.

"My expectation on the business and labor side is that it really is not going to matter," said Matt Bruenig, president of the People's Policy Project, a leftist think tank. "His history as a conflicted character on the court has been the history of someone who, in the political realm, might be described as fiscally conservative and socially liberal."

On issues that mattered to large American businesses, Kennedy sided with employers over labor, often casting the key vote in 5-4 rulings.

On crucial questions affecting the way companies negotiate with their employees, what kind of individuals they are prohibited from discriminating against and the legality of giant mergers, it's likely that Kennedy's successor, who President Donald Trump has said would come from a list his administration compiled of 25 conservative jurists, will vote exactly the same way Kennedy would have.

In his last term, Kennedy sided with conservatives in two of the most important labor questions in recent memory. In Epic Systems Corp. v. Lewis, Kennedy was with the 5-4 majority holding that employers can forbid their workers from joining certain class-action lawsuits. In Janus v. AFSCME, Kennedy joined the four other Republican-appointed justices in dealing a blow to public sector labor unions, overturning a 40-year-old precedent in the process.

Kennedy's retirement "doesn't portend much disruption," said Andrew Grossman, a conservative legal scholar and a partner at the law firm Baker & Hostetler.

"Justice Kennedy by and large was a pro-business jurist," Grossman said. "The doctrines that he followed, from arbitration, to pre-emption, to contract rights — it’s difficult to imagine that there will be much change given the people the president said he is choosing from."

CFPB ruling in the pipeline

There are a number of important business issues that the Supreme Court could rule on in an upcoming term.

For instance, it is virtually certain that the court will decide on the constitutionality of the Consumer Financial Protection Bureau, legal and policy experts told CNBC. The bureau, which was established in the wake of the financial crisis to protect consumers from predatory financial practices, has been mired in legal and administrative challenges since it was established.

Last month, the New Jersey-based mortgage lender PHH Corp., which had unsuccessfully sued the bureau, allowed the deadline for a Supreme Court challenge to pass. In that case, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the CFPB was constitutional, but vacated a $100 million fine against PHH in the process.

More challenges persist. In April, two payday lending groups sued the bureau, alleging that the "exercise of delegated, standardless legislative power" violated the Constitution.

Sen. Mike Lee, R-Utah, one of the names on Trump's list of potential justices, opposed the creation of the CFPB and has called it a "uniquely powerful super-agency."

Asked how Lee would rule on the bureau's constitutionality as an associate justice of the Supreme Court, his communications director, Conn Carroll, told CNBC that the question was "far too presumptive."

"That’s definitely something that we would look forward to being heard in court," said Akash Chougule, director of policy at the Americans for Prosperity Foundation. "There is a serious constitutional question that we would look forward to the court considering," he said.

Americans for Prosperity, part of the Koch brothers' network of libertarian political groups, has said it plans to spend millions of dollars on a campaign to confirm a Supreme Court justice that fits the group's conservative ideology.

The CFPB declined to comment. Sen. Elizabeth Warren, D-Mass., a champion of the bureau who first proposed the idea of the bureau while a professor at Harvard Law School, did not respond to an inquiry from CNBC.

Labor rights and discrimination

Labor groups are already gearing up for the court to hand down rulings that could cripple the power of private sector labor unions and permit discrimination based on sexual orientation.

In Janus, the Supreme Court ruled that states could not force public sector employees to pay union fees. The decision is expected to limit the financial sway of labor unions, which have been a historically potent force in Democratic politics.

Experts anticipate the court to take the ruling a step further, and apply its logic to private sector unions as well. It may go even further than that, both conservatives and liberals have said, and take up the issue of "exclusive representation," or the idea that a union is the only lawful negotiator for those in its bargaining unit.

Unions have been declining in political power for years, particularly in the private sector, but getting rid of union fees for nonmembers and exclusive representation could diminish their influence even further. That could be a win for corporate giants like Boeing and UPS, which have wrestled with their unionized work forces. And it could boost economic inequality, according to Bruenig.

Chougule said his group was hoping for a legislative solution on the issues of private sector union fees and exclusive representation — but noted that it was a constitutional issue that could be taken up by the Supreme Court.

The court is also likely to hear a case on whether companies are allowed to discriminate against employees based on sexual orientation. That's because circuit courts are split over whether Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on "sex," also applies to employment discrimination against gays and lesbians.

"It seems likely that other appeals courts will be called to address this issue, and eventually the Supreme Court may be asked to resolve the circuit split," J. Dalton Courson, an attorney at the law firm Stone Pigman, wrote on an American Bar Association blog earlier this year.

Lauren Novak, a partner at the law firm Schiff Hardin who has represented both labor unions and employers, said it's likely the question makes its way to the nation's highest court.

"For employers, it really just restricts the type of claims that employees can bring against them," she said.

Some cases already on the docket for next term could also limit claims against major companies.

In Air and Liquid Systems Corp. v. Devries, the Supreme Court in May agreed to hear whether companies can be held liable for products they did not produce. In another case the court agreed to hear, Frank v. Gaos, the court could issue a ruling that would make it harder for attorneys to bring suits against large companies on behalf of a significant number of consumers.