Justice Kennedy’s Legacy
Supreme Court Justice Anthony Kennedy, often a swing vote in some of the most impactful recent decisions, announced on June 27 that he plans to retire from the Supreme Court. His vacant seat will be a second opportunity for President Trump to shape the future of the Court.
Kennedy was nominated for the Supreme Court by President Ronald Reagan to replace Justice Lewis Powell. He was confirmed unanimously and took the bench in 1988 [1]. Though he was a Republican nominee, Kennedy’s views often aligned with the ideological center, setting him apart from the other eight justices as a more moderate swing vote [2]. In his thirty years on the Supreme Court, he was the deciding vote on several key cases on important issues including abortion and gay rights, which could eventually be overturned in his absence.
Justice Kennedy’s more central stance on some issues stemmed from his strong belief in individual rights. He co-authored the majority opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, which upheld Roe v. Wade and ruled that regulations and restrictions cannot place an “undue burden” on women seeking abortions protected under Roe. This case presented one of the first serious challenges to Roe and was one of the first major cases with Kennedy on the bench. When he voted in support of abortion rights in a 5–4 ruling, many conservatives were dismayed that he had joined the liberal wing of the court [3]. This served as a bellwether for future cases in which Kennedy defied expectations.
Kennedy’s support of individual rights also extended to the rights of criminals. In the 2005 case Roper v. Simmons, he delivered the majority opinion striking down the use of the death penalty for minors [4]. While he stopped short of ruling the death penalty entirely unconstitutional in this specific case as well as in other cases, he was more open to limiting capital punishment than some of his fellow conservative justices. Kennedy also upheld the rights of suspected criminals detained by the U.S., writing in his majority opinion in the 2008 case Boumediene v. Bush that it was unconstitutional for the government to deny the right to the writ of habeas corpus for detainees. He said that while the Constitution “grants Congress and the President the power to acquire, dispose of, and govern territory,” it does not give the government “the power to decide when and where its terms apply” [6]. In that sense, Justice Kennedy upheld the Constitution’s provisions for the rights of all individuals and sought to prevent the federal government from going beyond its mandate or circumventing the Constitution.
Important contemporary social issues have also been represented in Supreme Court cases during Kennedy’s tenure. Kennedy was the crucial swing vote in the 2015 case Obergefell v. Hodges, when the Court invalidated all existing bans on gay marriage, effectively legalizing it throughout the U.S. [7]. He also sided with the majority in the 2016 case Fisher v. University of Texas, in which the Court upheld a racially conscious university admissions policy that was intended to promote greater student body diversity [8]. These two cases show that Justice Kennedy was open to change, even if he more often sided with conservatives on these issues.
Still remaining loyal to the conservative wing of the court on some issues, Kennedy also authored the opinion for the landmark campaign finance case Citizens United v. FEC. The majority struck down regulations limiting the amount of independent campaign expenditures corporations and unions could make, as these organizations are entities whose political speech is protected by the First Amendment. This controversial ruling has been influential in increasing the amount of money in politics.
Rather than always voting for or against certain issues, as many of his fellow justices have, Kennedy has spent his time on the Supreme Court judging cases individually. Rather than adhering to a strict set of standards on hot button issues, his views have evolved, and he has been shown to judge cases by their own merits. Following Justice Kennedy’s retirement announcement, President Trump nominated Brett Kavanaugh to fill the vacant seat [9]. A well-established conservative federal appeals court judge, Kavanaugh’s nomination could shift the court to the right for years, if not decades. Another conservative appointee to the Supreme Court would give Republicans a solid majority; five conservative justices would have the power to limit or overturn landmark rulings on abortion, gay rights, or affirmative action, just to name a few. Though a shifting court is unlikely to completely overturn these rulings, they may limit the scope of previous precedents and give more power to the states to decide. Senate Majority Leader Mitch McConnell is aiming for a confirmation before the midterm elections, though Democrats plan to oppose him every step of the way [10].
References
[1] “Anthony M. Kennedy.” Oyez. Accessed July 03, 2018. https://www.oyez.org/justices/anthony_m_kennedy.
[2] Cillizza, Chris. “Kennedy’s Retirement Confirmed Every Republican’s Dream Scenario for Trump.” CNN. June 27, 2018. Accessed July 03, 2018. https://www.cnn.com/2018/06/27/politics/kennedy-retirement-donald-trump/index.html.
[3] McBride, Alex. “Casey v. Planned Parenthood (1992).” Thirteen: Media with Impact. Accessed July 10, 2018. https://www.thirteen.org/wnet/supremecourt/rights/landmark_casey.html.
[4] Roper, Superintendent, Potosi Correctional Center v. Simmons (March 1, 2005) (Supreme Court Reporter, Dist. file).
[5] Boumediene, et al. v. Bush, President of the United States, et al. (June 12, 2008) (Supreme Court Reporter, Dist. file).
[6] Ibid, 35.
[7] Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al. (June 26, 2015) (Justia, Dist. file).
[8] Fisher v. University of Texas at Austin (June 23, 2016) (Justia, Dist. file).
[9] Landler, Mark, and Maggie Haberman. “Brett Kavanaugh Is Trump’s Pick for Supreme Court.” The New York Times. July 10, 2018. Accessed July 12, 2018. https://www.nytimes.com/2018/07/09/us/politics/brett-kavanaugh-supreme-court.html.
[10] Ibid.
