Supreme Court Justice Anthony M. Kennedy announced Wednesday that he will retire when his successor is confirmed, preparing the way for the most significant change in the court’s makeup in half a century.
The vacancy will allow President Donald Trump to make the U.S. Supreme court a solidly conservative body for years, if not generations, to come — a towering legacy of his time in office.
Kennedy’s departure, which had been rumored for months, could also put in doubt the future of a nationwide right of access to abortion.
“Justice Kennedy was the most important member of the court in a century, maybe ever,” said Tom Goldstein, a Washington lawyer who argues frequently before the court and publishes the SCOTUSblog web site.
Kennedy turns 82 in July and is the court’s second-oldest justice. Ruth Bader Ginsburg is 85.
Since 2006, when moderate conservative Sandra Day O’Connor left the court, Kennedy has been the swing justice, often casting the deciding vote in the most high-profile cases.
Joining the court’s four other conservatives, he voted to gut the landmark Voting Rights Act, allow corporations and unions to spend unlimited funds to support candidates and give new life to the Second Amendment right to own a gun.
But he joined the liberals in banning capital punishment for the youngest offenders, declaring that prisoners at Guantanamo Bay had a right to challenge their detentions and limiting the powers of the states to enforce their own tough immigration laws.
He profoundly shaped the court’s rulings on gay rights, writing four of its most important decisions, including the landmark 2015 ruling that struck down bans nationwide on same-sex marriage.
“It’s not just that he was the pivotal vote so often. It’s that his thinking changed the country,” Goldstein said. Gay rights is the biggest example, but it’s not the only one.”
Any nominee chosen by Trump is sure to be more conservative than Kennedy. The president would likely pick someone as ideologically to the right as Neil Gorsuch, who has voted with the court’s other conservatives in nearly every case since taking his place on the bench just over a year ago.
President Ronald Reagan nominated Kennedy, a fellow Californian, in 1987 after the Senate rejected Robert Bork as too rigid and after a second nominee, Douglas Ginsburg, admitted smoking marijuana.
At first a reliable conservative, Kennedy soon broke away and voted to uphold the court’s 1973 Roe v. Wade abortion decision. But 14 years later, he wrote the ruling that approved a federal ban on so-called partial-birth abortions.
A Trump-nominated successor to Kennedy would likely become the court’s fifth reliable conservative, joining Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Gorsuch. Because only Thomas has declared opposition to Roe v Wade, it’s uncertain whether opponents of abortion would have the five votes needed to overturn it.
At age 69, Kennedy had a stent placed in one of his heart arteries, and underwent the same procedure a year later. But neither kept him off the golf course, and his health has appeared sound.
A year ago, he told friends he was considering stepping down, but he returned to the bench last October for the start of the current term. His departure will end nearly 31 years of service on the Supreme Court.
Mitch McConnell was quick to say that he will call for a vote this fall — in other words, before the elections which could change the balance of the Senate. In addition to stealing the nomination from Merrick Garland to Neil Gorsuch, Republicans also changed the rule by which a Supreme Court justice must be passed. It is now a simply majority of 50, not 60. Right now, the Republicans have 51 in the Senate. And Pence if there is a tie.
McConnell is, of course, not employing his own standard that he set in 2016:
Here is McConnell’s 2016 tweet where he set this standard. pic.twitter.com/wltr7gvhow
— Darrell DeRochier (@DeRochier) June 27, 2018
This news is likely to impact the country for generations to come — maybe more so than anything I have ever blogged about.
Durbin wants to wait until after midterms for Kennedy replacement. “McConnell set the new standard by giving the American people their say in the upcoming election before Court vacancies are filled.”
— Manu Raju (@mkraju) June 27, 2018
Trump can’t remember his name:
LOLOL I missed this live but Trump totally could not remember Justice Anthony Kennedy’s name at the beginning of his press event
“Justice… Anthony……. you know who I’m talking about.” pic.twitter.com/9CDJtSV7Uz
— Aaron Rupar (@atrupar) June 27, 2018
Sober thoughts from a former Kennedy law clerk:
While Kennedy is indeed fair minded, on many issues he ultimately inclined rightward. Landmark rulings on LGBT rights, abortion, capital punishment and racial equality will define his legacy; but so will influential opinions about campaign finance, Miranda rights, religious freedom, commercial speech and federalism. Though the left has not been shut out, it has mostly played defense.
Still, especially in contrast to the turbulence of the 1930s and 1960s, there can be little doubt that Kennedy’s tenure helped sustain a fair measure of stability. He and the court have served as a bulwark for the rule of law in a world often set against it.
As a result, his retirement will spark chaos. Keen to reshape American life on a startling scope and scale, conservatives will race to confirm a reliable vote. Things will get ugly — very ugly. Roe v. Wade hangs in the balance. So do many other famous precedents.
Accordingly, the court’s very legitimacy is now up for grabs. Signs suggest that President Trump aims to move the court so far to the right that half the nation will inevitably deem it an avowed enemy.
The confirmation battle ahead will place the court under crushing pressure. And if the result is a muscular, immodest conservative majority, the center will not hold.
The future now rests with Chief Justice John G. Roberts Jr., who has shown sustained concern for the court’s legitimacy, but whose votes place him far to Kennedy’s right. Will his court truly remain open to all Americans? Or will it speak for only one viewpoint?
As Kennedy recognized, the court teaches us all about democracy. It can define how we live. We can only hope that Kennedy’s insight carries on as the court steps toward a newly uncertain future.