What Justice Kennedy’s Departure Could Mean for the Supreme Court
WHY YOU SHOULD CARE
Because the man with arguably the single most important opinion in America is soon giving it up.
By Sean Braswell
For three decades, one man has held down the center of an often divided U.S. Supreme Court. OZY is taking a look at what the court might look like in Justice Anthony Kennedy’s absence and whom Donald Trump might nominate to take his place – from a no-nonsense Midwesterner to the lead author of the infamous Starr Report to a constitutionalist U.S. senator. This is Life After Kennedy.
Update: Justice Kennedy announced his retirement on Wednesday, setting off a scramble to fill the seat that will define the high court’s future.
The term “swing justice” doesn’t really do Anthony Kennedy justice. In a divided nine-member U.S. Supreme Court, the 81-year-old’s relatively moderate jurisprudential views often mean that his opinion is arguably the single most important one in the country. In his three decades on America’s highest court, the former Sacramento lawyer has been the deciding vote on issues from affirmative action and abortion to marriage equality and campaign finance. During last year’s Supreme Court term, Kennedy was in the court’s majority in a whopping 97 percent of its cases.
Justice Kennedy’s retirement was always going to be a big deal, but if he were to step down this week at the end of this year’s term, his departure would trigger a seismic event in American law and life. Following the confirmation of president Donald Trump’s nominee Neil Gorsuch last year, Republicans are eager to shore up a conservative majority on the court that could last decades and energize their base ahead of the 2018 midterms. And while most liberals have mixed feelings about Kennedy’s jurisprudential handiwork, there is no denying that he has become a one-man firewall against the potential rollback of LGBTQ rights, abortion rights and more. But what would Kennedy’s departure likely mean for the court’s subsequent direction?
The U.S. could soon have the most conservative Supreme Court in the past century.
Appointed to the court by Ronald Reagan, Kennedy is the second-oldest justice on the bench after Ruth Bader Ginsburg. But it’s not just the jurist’s age that is leading to the widespread speculation about his retirement. It’s the possibility that the Democrats could win control of the Senate in this year’s midterms and derail Trump’s next court pick (the president nominates justices to the Supreme Court in the U.S., but the Senate must confirm them). Historically justices consider the party of the president and not the Senate’s make-up, says Artemus Ward, author of Deciding To Leave: The Politics of Retirement from the United States Supreme Court. “Still, if Kennedy desires to have a Republican replace him on the bench, he likely has only this year and next to make that happen.”
So far at least Kennedy has given no clues as to his retirement plans, and has hired a full set of law clerks for next year’s term. If he does depart after this term, says Ward, it would likely be announced from the bench by the Chief Justice on the last day. If that happens, and Trump gets to pick Kennedy’s replacement, then the U.S. could soon have the most conservative Supreme Court in the past century.
The main issue at stake for a post-Kennedy court — and the one that will be the center of any replacement’s confirmation battle — is abortion. Kennedy has shown a willingness to limit abortion but not eliminate it and overturn the landmark case of Roe v. Wade. The same would not likely be true of his successor. “I am nearly certain that Kennedy would be replaced by an anti-Roe Justice,” says Daniel Urman, a law and policy expert at Northeastern University. “Add that to the four justices who have already said Roe was wrongly decided and you have five votes to overturn Roe.”
Kennedy has also penned the court’s recent opinions expanding LGBTQ rights, including Obergefell v. Hodges, the landmark marriage equality decision. While it is unlikely that a Kennedy-less court would overturn these decisions, they could well represent the high-water mark for LGBTQ rights for the foreseeable future. Another potential shift in the court’s rulings could come in the area of criminal justice, where Kennedy has tended to rule in favor of defendants, says Josh Blackman, a law professor at the South Texas College of Law Houston. Kennedy, for example, has written some of the most important decisions limiting the populations eligible for the death penalty, including juvenile offenders and the intellectually disabled.
Several other areas of the court’s jurisprudence could also change post-Kennedy. One is affirmative action, where Kennedy has sided with his four liberal colleagues to support race-conscious policies in college admissions and other areas, but that a more conservative successor would likely side with Chief Justice Roberts’s “color-blind” view of the constitution. Kennedy also has an expansive view of the First Amendment and wrote the majority opinion in Citizens United, the 2010 case that led to unlimited independent campaign expenditures by corporations in the name of free speech. “There’s a good chance that his successor could possess a more cramped view,” says Urman, “and limit the outer reaches of the court’s recent ‘libertarian’ streak on First Amendment issues.”
But will Kennedy really depart the court soon? Some court watchers argue that if Kennedy is truly concerned about his doctrinal legacy, then he will be hesitant to depart under a president who will replace him with someone who could significantly undermine it. Plus, when you possess the most important opinion in the country — and the opportunity to be a moderate voice in a country torn by partisanship — that can be hard to give up. “Kennedy would lose enormous power should he depart,” says Ward. Urman agrees. “The longer he stays, the longer his influence lasts. … It is really the Kennedy Court, not the Roberts Court. He gets to keep the court and country in the balance.” And what more can you ask of a swing justice than that?