On Wednesday, June 27th, Associate Justice of the Supreme Court Anthony M. Kennedy, 81 and an appointee of President Reagan, announced his intention to retire from the Court after over thirty years of service. Over the course of his tenure, but especially after the 2006 retirement of Justice Sandra Day O’Connor, Justice Kennedy earned a well-deserved reputation as a swing voter. His majority opinions gratified and confounded legal scholars across the legal spectrum on a host of hot-button issues, along with his colorful prose on the meaning of the Constitution and the individual’s role in our constitutional order.
Justice Kennedy sided with the Court’s more liberal members on decisions concerning abortion rights, affirmative action, the scope of the death penalty, presidential war powers during the Bush Administration, and the rights of LGBT Americans. However, he sided with the Court’s conservatives when it came to protecting Second Amendment rights and First Amendment rights of speech and religion. More often than not, Justice Kennedy was in the majority on the most consequential cases.
In 1992, Justice Kennedy voted to reaffirm Roe v. Wade and the constitutional right to an abortion.
In 2000, in Bush v. Gore, the Court (including Justice Kennedy) voted to end the recounting of votes in Florida and effectively settled the election for George W. Bush.
In 2008, he sided with the Court’s conservatives in holding the Constitution protects an individual right to keep a loaded gun at home for self-defense.
In 2015, following several prior decisions by Justice Kennedy favoring gay rights, he wrote the majority opinion recognizing a Constitutional right to gay marriage. Also in 2015, Justice Kennedy wrote the majority opinion in the Citizens United case, in which the Court rejected any spending limits on corporations and labor unions in federal elections.
In the last few weeks alone, Justice Kennedy was in the majority with the Court’s conservatives in a slew of blockbuster decisions. He wrote the majority opinion favoring a Colorado baker in a dispute between religious freedom and public accommodation laws, voted to uphold President Trump’s travel moratorium, voted to weaken public employee unions’ ability to raise money from their member. He also wrote a strong concurring opinion in a case striking down a California law, requiring pregnancy counseling centers to provide advertisements for abortion services.
Shortly after Justice Kennedy’s announcement, President Trump confirmed he would nominate a successor from a previous list of 25 candidates Trump distributed during his campaign. Senate Republicans have vowed to confirm a new justice before November’s midterm election, and Senate Democrats have vowed to oppose any nominee named before the midterm elections.
If President Trump nominates and the Senate confirms any of the nominees from Trump’s list of 25, the Court is likely to take a rightward turn on social issues, gun rights, labor issues, and affirmative action. However, the effect of another strong conservative on the Court is difficult to determine, as justices don’t always play their assigned roles. Justices Stevens and Souter were Republican appointees, but drifted far left during their tenures. More recently, in 2012, Chief Justice Roberts, a Bush appointee, voted with the Court’s liberal members to uphold a key provision of the Affordable Care Act; a case in which Justice Kennedy voted with the other conservatives to strike down the ACA. In 2016, Justice Roberts again voted to uphold the ACA, but gained Justice Kennedy’s vote for a 6-3 decision.
Regardless of who President Trump nominates, several things can be said of Justice Kennedy and the political moment.
First, Justice Kennedy had an outsized influence on the Court, more than most Justices in the last fifty years, and his opinions and their impact on American society and law will reverberate for decades. Students of constitutional law have studied, and will be studying his opinions, for years to come.
Second, whoever takes Justice Kennedy’s place will likely have myriad opportunities to impact Justice Kennedy’s legacy by affirming his decisions or undoing them. Conservative legal scholars are already teeing-up legal challenges in anticipation of a friendlier bench.
Third, the coming confirmation battle will be the defining political dispute of the next six months,and will dominate the news coverage and the lead up to the November 2018 midterm elections.
Regardless of one’s views of Justice Kennedy and his opinions, his legacy is secure both for how he has shaped and changed American law. And because future decisions by the Supreme Court on the thorniest issues will likely come down to upholding or overturning decisions that Justice Kennedy authored or joined.
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Author - Garrett M. Fahy, Associate Attorney Enterprise Counsel Group