Supreme Court Justice Anthony Kennedy, who had often been a “swing vote” between the liberal and conservative wings of the Court, announced on Wednesday that he will retire from the court at age 81. Appointed by Ronald Reagan, Kennedy will have served 30 years on the court, taking his seat in February of 1988.
Kennedy’s retirement gives Donald Trump the opportunity to make his second Supreme Court pick in the first 18 months that he has been in office. Trump’s first pick, Neil Gorsuch, was confirmed by the Senate and seated in April of last year.
Kennedy has frequently sided with the court’s liberal justices, providing the vote in a 5-4 decision that ushered in the legalization of same-sex marriage nationwide, in one instance. But given the opportunity to strike another legal blow for LGBTQ rights this year, in the Masterpiece Cakeshop case of a baker who refused to create a wedding cake for a gay couple, Kennedy wrote the majority opinion siding with the baker.
Even in that case, however, legal experts say that Kennedy’s wording in his opinion left the door open for further challenges to anti-LGBTQ discriminatory practices, with even solidly liberal justices Stephen Breyer and Elena Kagan signing on to Kennedy’s narrowly focused opinion in the case.
"The retirement of Justice Kennedy is something of a surprise," First Amendment attorney Reed Lee told AVN. "The timing isn't so unusual; the Supreme Court closes up shop for the summer and retirements often occur at the end of the term, and there's been a lot of speculation that he's ready to leave sometime soon, but the most recent speculation I've heard was that he intended to stay on for another term or two—but obviously he has sent his message to the president, intending to retire as of July 31. It's going to make for big changes, most likely. As it happens, he retired on a day when the person who filled the last vacancy made all the difference. A case was decided today essentially reversing a precedent set in 1976, which would not have gone the way that it went had [Merritt] Garland replaced Justice Scalia instead of [Neil] Gorsuch, and so today, especially, we have this demonstration of the importance that justices make, and losing Justice Kennedy, an important middle—I didn't always agree with him, but an important middle, and while it remains to be seen who's going to be nominated, this is not a good development."
However, according to an analysis by Mother Jones magazine, in the current Supreme Court term there have been 14 cases that have divided the court’s four liberals and four conservatives along ideological lines. In all 14 of those cases, Kennedy has voted with the conservatives, giving them a 5-4 majority.
Just this week, Kennedy sided with the conservatives in a 5-4 vote to uphold Trump’s “travel ban,” restricting entry to the United States by visitors from a list of predominantly Muslim countries. Kennedy also joined the conservative majority in a ruling that overturned a 40-year precedent that required government workers who choose not to join unions to nevertheless help pay for collective bargaining costs. The ruling was considered a major blow to labor unions generally.
Also this week, the court dealt a setback to abortion rights, ruling 5-4 that pregnancy centers are not required to inform women about the option of terminating their pregnancies. Kennedy sided with the conservative majority in that case, too. It is unclear if the court has more opinions to deliver as it closes out its session.
Before the retirement announcement, the possibility that Kennedy could be swayed to vote with the liberals remained, however, with even Justice Ruth Bader Ginsburg telling an audience earlier this year that Kennedy should “eat more kale,” in order to stay healthy and on the court as long as possible.
That possibility now disappears, unless Democrats can figure out a way to block a Trump nomination, as Republicans blocked Barack Obama’s nomination of Merrick Garland in 2016.
"We've seen the kind of judge that Trump has selected and he clearly is looking for somebody conservative," noted veteran First Amendment attorney Paul Cambria, "so as is obvious to everyone else in the country, the court will become staunchly conservative with the next appointment, and probably remain so for many moons. Unless there is a Democratic president at the next election and Thomas and some of the others resign, it seems to me that we're in for a rough road when it comes to civil rights and individual liberties."
Photo via Collection of the Supreme Court of the United States (Public Domain)