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Anthony Kennedy, swing justice, announces retirement

[Editor’s Note: This post, originally published at 2:23 p.m., has been moved back to the top of the blog.]

Justice Anthony Kennedy announced today that he would retire from the Supreme Court, effective July 31. In a letter to President Donald Trump, Kennedy wrote that “it is the highest of honors to serve on this Court,” and he expressed his “profound gratitude for having had the privilege to seek in each case how best to know, interpret, and defend the Constitution and the laws that must always conform to its mandates and promises.” The decision by the 81-year-old justice, who spent much of his 30 years on the court as a pivotal vote on a wide range of high-profile issues, especially since the retirement of Justice Sandra Day O’Connor in 2006, is all but certain to kick off a pitched confirmation battle because of the possibility that his successor could move the court significantly to the right on a number of those issues.

Justice Anthony Kennedy (Art Lien)

When he was nominated to the court in November 1987, Anthony McLeod Kennedy was only President Ronald Reagan’s third choice to fill the vacancy created by the retirement of Justice Lewis Powell. Reagan had first nominated Robert Bork, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, to succeed Powell, but the Senate rejected Bork’s nomination by a vote of 42 to 58. Reagan next nominated another judge on the D.C. Circuit, Douglas Ginsburg, but Ginsburg withdrew his nomination after the revelation that he had used marijuana as an adult. Kennedy, then 51 and a judge on the U.S. Court of Appeals for the 9th Circuit, was confirmed to the court in February 1988 by a vote of 97-0.

When he nominated Kennedy, Reagan billed Kennedy as a “true conservative,” but he was generally regarded as a consensus pick after the failed Bork and Ginsburg nominations; Reagan himself noted that Kennedy “seems to be popular with many senators of varying political persuasions.” The Kennedy nomination drew disapproval from some conservatives, however. Senator Charles Grassley, a Republican from Iowa, characterized Reagan’s choice as a “basic compromise of principle,” while political activist Richard Viguerie described the nomination as a “total surrender to the left.”

Over the next three decades, conservatives were indeed often disappointed with Kennedy and his votes on a variety of issues, particularly social ones. One such topic was abortion. Anti-abortion voters had played a key role in Reagan’s election, and Kennedy initially provided both the president who appointed him and those voters with reason to be optimistic. Just a little over a year after his confirmation, Kennedy joined the majority in upholding a Missouri law that (among other things) defined life as beginning at conception and required doctors to conduct fetal viability tests before performing abortions on women who were 20 or more weeks pregnant. Along with Justice Byron White, Kennedy also joined a separate opinion, written by then-Chief Justice William Rehnquist, that would have effectively dismantled the test outlined in Roe v. Wade, the Supreme Court’s landmark 1973 decision establishing a woman’s basic right to an abortion. And in 2007, Kennedy wrote the majority opinion when a closely divided court upheld a federal law that criminalized a procedure known as a “partial-birth” abortion.

But in 1992, in a challenge to a Pennsylvania law restricting abortions, Kennedy wrote an unusual joint opinion, along with O’Connor and Justice David Souter, that reaffirmed the “essential holding” of Roe. “Men and women of good conscience can disagree,” the trio said, about “the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals,” the opinion continued, “find abortion offensive to our most basic principles of morality, but that cannot control our decision.” At the same time, the Kennedy/O’Connor/Souter joint opinion established a new and less stringent test for evaluating challenges to the constitutionality of abortion regulations: Efforts to regulate abortions before the fetus is viable are constitutional as long as they do not impose an “undue burden” on a woman’s right to end her pregnancy.

Fourteen years later, Kennedy joined the court’s four more liberal justices – Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan – in striking down two parts of a Texas law that had made it significantly more difficult for abortion clinics to operate in the state. In enacting the law, the Texas legislature had pointed to the need to protect women’s health, but the majority declined to take that justification at face value.

During his 2016 presidential campaign, then-candidate Donald Trump declared that he would appoint “pro-life” justices. When pressed later about whether he wanted the Supreme Court to overturn Roe, Trump responded that, if he were able to put two or three justices on the court, it would “happen automatically.” As Reagan’s experience with Kennedy reflects, there is no way to guarantee how a nominee will vote once confirmed. At the same time, however, Trump has relied on the Federalist Society, a conservative legal group, to vet his judicial nominees. Members of that group have repeatedly vowed that, when it comes to Supreme Court nominees by Republican presidents, there should be “no more Souters” – a reference to their disappointment with the George H.W. Bush nominee. If Trump does replace Kennedy with a new justice who fulfills the president’s promise, the result could be a substantial shift on the court on abortion rights.

Kennedy’s pivotal role in the Supreme Court’s gay-rights cases prompted one law professor who studies the court to dub him the “first gay justice,” but that role could also now provide an opening for a shift in the court’s gay-rights jurisprudence.  In 1996, in Romer v. Evans, Kennedy wrote for the court – over the objections of three of his colleagues –striking down an amendment to the Colorado constitution that barred state and local governments from adopting laws or policies prohibiting discrimination based on sexual orientation. The law, Kennedy explained, “classifies homosexuals not to further a proper legislative end but to make them unequal to someone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.”

Seven years later, the court – again, by a vote of 6-3 – ruled in Lawrence v. Texas that a Texas law criminalizing private consensual sexual relations between two adults of the same sex violates the Constitution. Some of the lawyers for the men challenging the law wept openly in the gallery as Kennedy read from his opinion for the court, emphasizing that the plaintiffs “are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

In 2013, Kennedy would provide the key vote and write for the court in United States v. Windsor, the case that invalidated the federal Defense of Marriage Act, which defined marriage as a union between a man and a woman for purposes of over a thousand federal laws and programs. Kennedy described the legalization of same-sex marriage by some states as a decision that gave same-sex couples “a dignity and status of immense import.” By contrast, he observed, “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.”

Exactly two years after the decision in Windsor, Kennedy delivered the court’s ruling in Obergefell v. Hodges, striking down Ohio’s ban on same-sex marriage. Kennedy’s opinion used the same lofty rhetoric found in his earlier gay-rights decisions, explaining that the “limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”

In an interview with 60 Minutes shortly after the 2016 election, Trump described same-sex marriage as “done. These cases have gone to the Supreme Court,” he indicated. “They’ve been settled. And I’m—I’m fine with that.” But even if Trump regards the question as resolved, and the conservative successor that Trump has promised agrees, the Supreme Court has not yet weighed in on a variety of other legal issues related to marriage – such as divorce and child custody – or, more broadly, on civil-rights protections for LGBT people, for example in the workplace, schools and the military. Kennedy’s successor could hold the deciding vote in such cases, which could determine the scope of LGBT rights even if the right to same-sex marriage remains intact.

Kennedy also provided the key vote in the Supreme Court’s most recent decision on affirmative action. His vote was not entirely predictable: In 2003, in Grutter v. Bollinger, the court – by a vote of 5-4 – upheld the University of Michigan Law School’s affirmative-action policy. O’Connor wrote for the majority, in an opinion joined by Souter and Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer. Kennedy joined then-Chief Justice William Rehnquist’s dissent but also penned his own dissent, in which he reasoned that there “is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity, but an educational institution must ensure, through sufficient procedures, that each applicant receives individual consideration, and that race does not become a predominant factor in the admissions decisionmaking.” The law school in this case, he continued, had not met that test.

Thirteen years later, Kennedy would write for the court in a ruling that upheld the University of Texas at Austin’s consideration of race in its undergraduate admissions process. He was joined by Ginsburg, Breyer and Justice Sonia Sotomayor in the 4-3 decision; Justice Elena Kagan was recused from the case, while Justice Antonin Scalia died before the court issued its opinion. Kennedy cautioned that the court’s decision was not a “blank check” for universities to use the same race-conscious policy indefinitely. Instead, Kennedy stressed, it “is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.”

Lawsuits challenging affirmative-action policies at the University of North Carolina at Chapel Hill and Harvard University are currently winding their way through the lower courts and could reach the Supreme Court in the next few years. There’s no way to know how Justice Neil Gorsuch, who replaced Scalia on the bench, would vote in such a case, but if he shares his predecessor’s views, the outcome could hinge on the vote of Kennedy’s successor. Then again, even the majority in Grutter, writing in 2003, suggested that affirmative action might not be necessary in 25 years – a sunset that is now only 10 years away.

In recent years, Kennedy has sided with the court’s four more liberal justices on a wide variety of other issues, ranging from the death penalty and the Sixth Amendment to redistricting and the Fair Housing Act. Kennedy’s successor could play a central role in determining the direction of these areas of the law as well, and we can expect whomever Trump nominates to face persistent questioning about his or her views on these subjects. Of course, if past confirmation hearings (for nominees put forward by both Republican and Democratic presidents) are any predictor, whether we learn anything about those views beyond what the nominee has already written will be another matter. But what we can say with certainty is that, given Kennedy’s role on the court, the upcoming confirmation battle will be a heated one.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Anthony Kennedy, swing justice, announces retirement, SCOTUSblog (Jun. 27, 2018, 7:01 PM),