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Decade in review: The retirement of Justice Anthony Kennedy

The Supreme Court closed out its 2017-2018 term with high-profile rulings in the challenge to President Donald Trump’s ban on travel to the United States by citizens of eight predominantly Muslim countries and the dispute over the payment of fees by public-sector employees who are represented by – but do not belong to – a union. But the biggest news of that term, and indeed of the decade, came shortly after the term ended, when Justice Anthony Kennedy announced his plans to retire after 30 years on the court.

Particularly since the retirement of Justice Sandra Day O’Connor in 2006, Kennedy had served as the pivotal vote on a wide range of high-profile issues, like affirmative action, abortion, gay rights and the death penalty – all areas in which Kennedy joined his four more liberal colleagues in key rulings. Kennedy’s retirement would give Trump the opportunity to nominate Kennedy’s successor and move the court to the right for decades to come.

Less than two weeks after Kennedy disclosed his plans to retire, Trump nominated Kennedy’s former law clerk, then-Judge Brett Kavanaugh, to succeed him. During Kavanaugh’s first term on the court, he filled the role played by Kennedy as the justice who was most often in the majority – 91 percent of the time. But there were early signs that Kavanaugh might ultimately prove more conservative than his former boss. After struggling with the issue of partisan gerrymandering for years during Kennedy’s tenure on the court, in June of 2019 the justices ruled 5-4, with Kavanaugh in the majority, that federal courts should not get involved in reviewing partisan-gerrymandering claims. And although Kennedy had provided the fifth vote in March of 2018 to temporarily block the execution of a Missouri inmate with a rare medical condition, Kavanaugh was part of the 5-4 majority that ultimately rejected the inmate’s claim on the merits. The court’s docket this term is packed with controversial issues, so we will likely have a much better sense by the end of June of whether and to what extent the court will continue to move to the right as a result of Kennedy’s retirement. 

Recommended Citation: Amy Howe, Decade in review: The retirement of Justice Anthony Kennedy, SCOTUSblog (Dec. 26, 2019, 3:30 PM),