Justice Kennedy’s Retirement: Reactions and Retrospectives

As we wait for President Donald Trump to announce his nominee to replace Justice Anthony Kennedy, it is worth taking a look at some of the numerous reflections on his career and on his retirement, which he announced on June 27, 2018, shortly after the Court issued its last opinions for the Term. Justice Kennedy was seen by many as the swing vote in an intensely partisan time in the Supreme Court’s history. Indeed, Adam Liptak of the New York Times called this Court “The Kennedy Court,” which is the moniker traditionally reserved for the Chief Justice. On particular issues — notably gay rights, affirmative action, and (sometimes) abortion — Justice Kennedy sided with the liberal bloc of the Court, often providing the fifth vote in 5-4 majorities. More often, however, he took conservative positions, including in areas such as voting rights, health care, organized labor, the 2nd Amendment.

Below is a list of articles that take a retrospective look on Justice Kennedy’s legacy and how his presence on the Court shaped its current state:

  • 5 Landmark Justice Kennedy Opinions (Quint Forgey, Politico): Forgey lists some of the notable Kennedy decisions including: Planned Parenthood v. Casey and Citizens United v. Federal Election Commission. Justice Kennedy, along with Justices O’Connor and Souter, wrote an unusual joint opinion in Casey, refusing to overrule Roe v. Wade and creating the undue burden test, which rendered unconstitutional state regulations that placed “a substantial obstacle in the path of a woman seeking an abortion.” In Citizens United, with Justice Kennedy writing for the majority, the Court struck down campaign finance limitations on corporations’ political speech. Kennedy wrote: “Political speech is ‘indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.”
  • In His Final Term, Justice Kennedy Handed Conservatives Many Victories (Joe Fox, Ann Gerhart, and Kevin Schaul, The Washington Post): This article looks at the ideological breakdown of each landmark decision of the 2017-18 Supreme Court Term, and how Justice Kennedy sided on each issue. Overall, Justice Kennedy voted with the conservative majority in 15 out of 20 of the term’s most controversial cases, and he did not side with the liberal bloc in a single 5-4 decision.
  • Anthony Kennedy Just Destroyed His Legacy as a Gay Rights Hero (Mark Joseph Stern, Slate): Stern provides readers a brief overview of the jurisprudence established by Kennedy’s opinions on the topic of expanding gay rights including Romer v. Evans, U.S. v. Windsor, Lawrence v. Texas, and Obergefell v. Hodges. Kennedy, in a 5-4 decision writing for the majority in Obergefell, explained that the Fourteenth Amendment protects the right of members of same-sex couples to marry. Stern argues, however, that President Trump may appoint a justice who, with the other conservatives on the Court, could reverse the holding in Obergefell, or at least roll back the protections established in previous cases—unraveling Justice Kennedy’s persona as a champion of extending gay rights and writing into law marriage equality.
  • Why Anthony Kennedy Gave Up (Dahlia Lithwick, Slate): Lithwick starts her article by calling the notion that Kennedy was a moderate centrist “fan fiction.” Although Kennedy’s vote was, at times, unpredictable on certain issues, she states “he was never anything but a staunch conservative who enjoyed occasional casual day trips to the left side of the bench.” Kennedy was perceived as someone who respected civility, but in reality, Lithwick says, the reality that his successor would be named by a president “who lies, bullies, and destabilizes the rule of law” did not impede Kennedy’s retirement.
  • Justice Kennedy’s Travel-Ban Opinion, in Light of His Retirement (Amy Davidson Sorkin, The New Yorker): Sorkin gives readers a breakdown of Kennedy’s last contribution to the Court, which was his concurrence in Trump v. Hawaii. Although Kennedy sided with the conservatives Justices granting President Trump greater authority to craft immigration policy, he possibly wanted to signal to the public that he had a nuanced perspective on the travel ban. Kennedy stated in his concurrence “[a]n anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”
  • Good Riddance, Justice Kennedy (The Editors, The National Review): The conservative publication’s editorial board gave a negative review of Justice Kennedy’s legacy on the Court. They pointed to a general lack of succinct legal philosophy and sense of confusion in Kennedy’s writing. The board called for Trump’s next pick to have a greater understanding of fidelity in his/her judicial decision-making.
  • Retirement of Justice Anthony Kennedy (SCOTUSBlog.com): SCOTUSBlog is doing a series of articles about the career and legacy of Justice Anthony Kennedy, written from many different points of view.

This post was written by ISCOTUS Fellow Michael Halpin, Chicago-Kent Class of 2020, and was overseen by ISCOTUS Co-Director and Chicago-Kent Faculty Member Carolyn Shapiro.

Leave a Reply

Your email address will not be published. Required fields are marked *