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Kennedy Retirement Ends One Era, Begins Another

By Sarah Kellogg

June 28, 2018

Justice Anthony Kennedy
Photo Credit: Collection of the Supreme Court of the United States

With the retirement of U.S. Supreme Court Justice Anthony M. Kennedy, a centrist who has molded many of the Court’s major cases over the past decade, the High Court likely will shift even further to the right as conservatives lock in a solid 5–4 majority with his replacement.

That change is even more plausible because a Republican majority in the U.S. Senate, which has generally moved in lockstep to greenlight President Trump’s court nominees, will confirm any name Trump puts forth to fill the vacancy.

“By retiring now, Kennedy hands President Trump a golden opportunity to put his stamp on the Court,” said Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute. “All of the people on the White House list of 25 potentials could be considered more reliably conservative than he has been — which means that Chief Justice John Roberts will become the median justice.”

Observers from both parties say that the Court will undoubtedly seek out opportunities to take up high-profile cases coming up through the lower courts, giving the new majority a chance to consider and decide contentious issues such as the protection of civil rights, access to abortion, and gun ownership.

“While [Kennedy] wasn’t a reliable voice for women’s reproductive rights or civil rights, he was willing to stand against some of the far-right’s worst excesses when it came to attacking choice and issued or joined some important civil rights rulings,” noted Michael Keegan, president of People For the American Way, a progressive advocacy group, in a written statement. “His retirement means both marriage equality and the right to abortion in the United States, as well as key civil rights rulings, are in grave danger.”

An appointee of President Reagan and the Court’s longest-serving member, Justice Kennedy has played a critical role in some of the Court’s most noteworthy decisions, including Citizens United v. Federal Election Commission (2010), which opened the floodgates for unrestricted money in campaigns; Bush v. Gore (2000), which secured George W. Bush’s slender presidential victory; and Obergefell v. Hodges (2015), which determined that same-sex couples have a right to marry. He also cast the deciding vote in the 2008 Boumediene v. Bush case, which gave Guantanamo Bay prisoners the right to legally challenge their detention.

“Justice Kennedy has been pivotal in protecting a woman’s right to choose, students’ rights to attend high school graduation ceremonies and football games without being asked to stand for a Christian prayer, and gay couples’ right to marry,” said Ayesha N. Khan, a trial and appellate litigator with the Potomac Law Group. “Those are outsized contributions for which, in some instances, he deserves single-handed credit.”

Kennedy, who turns 82 in July, announced his retirement as the High Court’s 2017–18 session came to a close on June 27. In his written statement, he said that it has been “the greatest honor and privilege to serve our nation in the federal judiciary for 43 years, 30 of those years on the Supreme Court.” His retirement is effective July 31, 2018.

First appointed to the federal bench by President Gerald R. Ford at the behest of then California Gov. Ronald Reagan, Justice Kennedy served on the U.S. Court of Appeals for the Ninth Circuit from May 1975 until February 1988 when he was sworn in as a Supreme Court justice.

“What has driven Justice Kennedy’s rulings is that he is, above all, a human being rather than an ideologue,” Khan added. “That cannot be said of the remaining conservatives on the Court. I hope it is true, however, of the person who replaces him.”

While conservative groups such as the Federalist Society and the Heritage Foundation have prepared a list of two dozen candidates for the High Court, the most frequently mentioned contenders include U.S. Court of Appeals for the District of Columbia Judge Brett Kavanaugh, who is a former Kennedy law clerk; Third Circuit Judge Thomas Hardiman; and Eleventh Circuit Judge William Pryor Jr.

"The Court has moved to the right incrementally over time," said Susan Low Bloch, professor of constitutional law at Georgetown University Law Center. "When Justice Kennedy is replaced by a Trump appointee, if that happens, then the Court will lurch to the right. The appointment will be the most significant in a very long time. It's like replacing Justice [Thurgood] Marshall with Justice [Clarence] Thomas, which was very significant in it's own right, but was more expected." 

Anti-abortion groups welcomed the news of Kennedy’s retirement. They expect that Roe v. Wade, which gave pregnant women the right to choose an abortion, will be overturned with a more conservative replacement. Kennedy co-authored an opinion to uphold Roe as a matter of precedent in 1992’s Planned Parenthood of Southeastern Pennsylvania v. Casey, even though the opinion noted that some “find abortion offensive to our most basic principles of morality, but that cannot control our decision.”

In a statement, Catherine Glenn Foster, CEO and president of Americans United for Life, said that Kennedy’s retirement gives Trump the chance to nominate a “committed constitutionalist to the Supreme Court who will hew to the intended meaning of the nation’s charter and refrain from employing it as a means of social engineering.”

Democrats in the Senate are two votes shy of blocking any Trump nominee for confirmation, but they are expected to challenge candidates they deem too conservative. Their efforts will be aided and impeded by outside groups that are expected to raise tens of millions of dollars to lobby lawmakers during the nomination battle.

“This will be one of the great constitutional fights of the country’s history,” said Michael Waldman, president of the Brennan Center for Justice at NYU School of Law. “No nominee should be rammed through without due consideration and debate. The seat should not be filled with someone who threatens or undermines voting rights, individual freedoms, or the balance of powers enshrined in our founding documents.”