Ending an era, and almost certainly guaranteeing strong conservative control of the Supreme Court, Justice Anthony M. Kennedy, 81, retired on Wednesday afternoon, hours after the tribunal had finished a momentous term.
His retirement takes effect at the end of the month, giving President Trump and the Republican-controlled Senate more than enough time to find a successor before the November elections.
Because the President has made clear he will choose nominees to the Court from lists of individuals with well-established conservative views, the chances are very strong that a new Justice will be more conservative than Kennedy has been in his 30 years of service on the high court.
With Kennedy’s departure, the Court will be without the dominant “swing” vote he has cast in scores of the highest-profile and most historic decisions made. He inherited that decisive opportunity from retired Justice Sandra Day O’Connor, who had inherited it from the late Justice Lewis F. Powell, Jr.
And the retirement will take the single most influential Justice in history on the gay rights revolution. He wrote every one of the Court’s major rulings in that field, and was considerably more liberal in doing so than he has been on other social and cultural issues.
As a current illustration of his key role, there were 17 decisions in the just-ended term that were decided by 5-to-4 votes, and Kennedy was in the majority on every one of them. However, unlike some prior terms, he did not once line up in such closely divided decisions with the Court’s four most liberal Justices.
When the Court reassembles on the first Monday in October, it will as usual be facing a variety of difficult issues, probably including a number involving controversies stirred up by President Trump’s approach to governing, such as a host of issues about immigration and some basic legal tests for Obamacare, and more cases on gay rights and voting rights. A key point of speculation will be who, if any of the other Justices, would become a “swing” member of the Court.
Stephen Vladeck, a University of Texas law professor who follows the Court closely, noted Kennedy’s retirement Wednesday with this Twitter entry: “John Roberts just became the single most important person in America.” By that he meant that the Chief Justice would be in a position, with a new conservative replacing Kennedy, three other conservatives continuing on the bench, and four liberals remaining, to hold the decisive vote when the Court divides most deeply.
Roberts is generally a strongly conservative judge, but he has at times sided with the Court’s more liberal Justices, as he did in sparing President Obama’s Affordable Care Act from its most severe constitutional challenge and as he did just this month, in a historic advance of digital privacy by erecting a significant barrier to police gathering of data about where people use their cellphones.
A question that will arise immediately when a new Justice arrives will be whether a Court with a more predictable conservative majority would overrule such landmark decisions as the original abortion-rights case, Roe v. Wade, which Kennedy helped to keep largely intact when it came under a heavy challenge in 1992, and Obergefell v. Hodges, the 2015 decision that first established an equal constitutional right for gay and lesbian couples to wed.
The Chief Justice has shown some fairly strong desire to protect the Court’s reputation as a tribunal that does not decide cases for political reasons, and he might not be willing to cast a deciding vote to overturn such precedents.
Among the other Justices, Clarence Thomas is likely to gain more influence if the new Justice is as conservative as the most recent member of the Court – Trump nominee Neil M. Gorsch – because Thomas is the most committed conservative on the bench. He also has a lengthy list of unusual positions that he might feel have more chance of succeeding – such as one he took just the other day, arguing that a key part of federal voting rights law does not even apply to the use of race in drawing up new election districts.
Justice Samuel A. Alito, Jr., is the other remaining member of the conservative bloc, and he, too, could gain some influence. He is, however, a more cautious judge than Thomas.
Of the four liberals, Justice Elena Kagan, the newest member of that bloc, is the one that appears likely to have added opportunity to try to work with conservatives to make new coalitions. She has not had as liberal a record as the other three on her ideological side of the bench – Justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor.
As President Trump did with his nomination of Justice Gorsuch last year, he is expected to again make a selection from a list of suggestions provided by conservative advocacy organizations. In the version of that list that the White House released in November, there are 23 on the list who are already judges on federal or state courts, and one U.S. Senator, Mike Lee of Utah. Also on the list is the senator’s brother, Thomas Lee, now on the Utah Supreme Court.
While Democrats and the liberal advocacy groups that support them are expected to make a major effort to slow down if not to stop any new Trump nominee, the Democrats as the minority party in a Senate where the majority has a nearly dominant role will have little realistic opportunity to have influence.
Democrats are still smarting from the fact that the Republican majority, led by Kentucky Senator Mitch McConnell, held a Supreme Court vacancy open for more than a year, thus depriving President Obama from making an appointment to the Court following the death of Justice Antonin Scalia.
The political situation in the country as of right now, with many observers expecting the Democrats to make major gains in the November congressional elections, suggests that the GOP majority will do all that its powers allow it to make sure that a new Trump nominee is approved before the voters go to the polls.
It is unknown whether Justice Kennedy was thinking about the political circumstances when he opted to retire at this point. As a California legislative lobbyist, he was active as a Republican. However, he does not have the reputation of being a devoted partisan follower of the party’s political fortunes.
It is not uncommon, though, for a Justice who got to the Court as a nominee of a president of one of the political parties to hand the seat back to that party if it controls the White House at the time.
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Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.
