THE KENNEDY RETIREMENT EFFECT
By Dr. PAUL FABRIZIO
The retirement of Supreme Court Associate Justice Anthony Kennedy and the appointment of his replacement by President Donald Trump will be the biggest battle for a Supreme Court nominee since Clarence Thomas’ nomination in 1991. The stakes are the highest they can be with the balance of power on the Court potentially shifting to a solid conservative majority.
The best way to understand the stakes at play is to look at Justice Kennedy’s record. During his 31 years on the bench he wrote 276 opinions according to a count by correspondent James Hohmann at The Washington Post. In 92 of those opinions his vote was decisive in 5-4 decisions. Among the opinions where he provided the majority vote were a litany of cultural touchstones including
Bush v. Gore deciding the 2000 presidential election
Citizens United v. the Federal Election Commission on campaign finance
The Casey v. Planned Parenthood case which upheld the central meaning of Roe v. Wade
The Heller case allowing gun ownership in Washington D.C.
Several cases in favor of gay rights including Obergefell v. Hodges and Texas v. Lawrence
Several cases limiting the death penalty
Lee v. Weisman in 1992 about public prayer which limited the role of religion in public life
Simply put, a more important justice in the last 25 years cannot be found. Kennedy, a Catholic, was difficult to categorize in his judicial philosophy. He was in a sense a libertarian from California, clearly conservative in many of his business and criminal case decisions but with a strong social justice bent seen especially in the gay rights and death penalty decisions. He said that he opposed abortion on a personal basis but he was key in supporting Roe v. Wade during his time on the bench. He was a contradiction to many. An unreliable vote for conservatives, yet the last hope for liberals worried about a conservative Supreme Court.
The Legislative Director for Texas Right to Life summed up Kennedy’s role on the Court best. He told The Texas Tribune “Kennedy was our bar. He was the hurdle that we needed to clear, but now he is gone, and there is no hurdle anymore.”
President Trump has the opportunity to solidify a conservative Court for potentially a generation or more if he can successfully nominate a justice with a similar philosophy to current conservative Justices Clarence Thomas, Sam Alito, or Neil Gorsuch. Despite the GOP holding a majority of seats in the Senate, there are a few pro-choice votes in the Republican caucus so the President will probably be careful in finding a conservative candidate who can get pro-choice Republican or moderate Democrat support.
A nominee like this would have profound effect on the Court. If the person votes like the other staunch conservatives, there could be a pullback on gay rights in the workplace and in relation to religious rights. The current conservatives have strongly supported the religious freedom of people who morally oppose state approved gay marriages, abortion privileges, and contraceptive mandates. There is a potential that the Court would shift to whole-hearted support for freedom of conscience above all other rights, leaving a society that can legally discriminate sometimes against some people over some moral issues.
A nominee like the current conservatives on the Court would also be expected to tighten abortion restrictions and possibly even repeal Roe v. Wade. Justice Kennedy helped craft the current standard that a state may not place an “undue burden” on a woman seeking pregnancy termination. That standard will probably not stand for long. Court action in this direction could lead to a nation where each state would set up its own abortion laws with some allowing full and unlimited access to the procedure while others would ban it altogether. A solidly conservative Court would be more open to school prayer and public displays of religion and would also be harder on criminals. It would also support more gun freedom but less migrant rights.
It is important to note that the Supreme Court and the justices on it can surprise. Justices change their minds and sometimes migrate from one ideological position to another. There is speculation that Chief Justice John Roberts, a conservative but not as consistent ideologically as Thomas, Alito, and Gorsuch, might now take the road that Kennedy did. Some are wondering if Roberts, who deeply believes in the importance of the institution of the Court, might try to steer the Court into a less obviously partisan route. If he believes that 5-4 decisions split along ideological lines are bad for the public acceptance of the Court then he might try to lead the other justices in a different way. This can be done by finding the least inflammatory ways to decide a case, focusing on small matters, looking for loopholes, and even punting on a case when it is too controversial. The decisions this term on the gay rights versus the baker and the florist might be a model for Roberts in the future. He might convince the others to decide things narrowly and not leave much room for precedent. A Court that whispers rather than shouts might be his model for leadership.
Finally, in talking about the Court and its members one has to note the judges’ ages. Justices Ruth Bader Ginsburg, Stephen Breyer, and Clarence Thomas are all past normal retirement age. At some point they will step down. Another retirement could change the dynamics of the Court. When that vacancy occurs also matters as all presidents are term limited. President Trump will be replaced by another president in 2021 or 2025. Justices with unlimited tenure think long term, well past the current political cycles.
The retirement of Kennedy is a big deal. His leaving changes the Court and potentially our society. President Trump can be expected to nudge the Court in a conservative direction. How far it will go, and how long it will stay there are questions that no one can answer right now. There are too many other factors beyond the realm of one new justice that can and will influence the Supreme Court.
Dr. Paul Fabrizio is Professor of Political Science at McMurry University.