At the conclusion of any Supreme Court term, court-watchers wait with baited breath for two things: (1) the announcement of decisions in the most controversial cases from the term, and (2) the announcement of a retirement from the bench. This year, speculation swirled that Justice Anthony Kennedy would step down- speculation that obviously did not come to fruition.
Kennedy’s tenure on the Court is much debated by those who watch the Supreme Court for a living. Is he a conservative? Is he a moderate? Has he changed over the years?
On abortion, he is most definitely the key vote in cases. When a Texas law was most recently challenged, it was Kennedy who decided that it went to far and struck it down. In this area, he measures abortion regulations based on Sandra Day O’Connor’s “undue burden standard,” which is fine. But more recently, he seems to have forgotten the “undue” aspect and views any burden (law) as “undue.”
Conversely, he penned the Citizens United decision and he sided with the majority in Shelby County vs. Holder which struck down an important aspect of the Voting Rights Act. Some may view Kennedy’s jurisprudence as “case specific;” this writer views it as unprincipled and all over the map.
Perhaps the two most recent decisions that have riled conservatives regarding Kennedy is his siding with the majority in King vs. Burwell and the gay marriage Obergfell decision. In the Burwell decision, some have noted his lack of a voice, or a concurring opinion. However, Kennedy does not have a history of writing concurring opinions which suggests he believes the reasoning of the majority decision 100%.
In the Obergfell decision, which I have read many times, Kennedy unfortunately writes a paper that is better left to a college class on poetry and prose rather than an exercise in constitutional law. Take, for example, the soaring rhetoric of the conclusion:
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
It took some 27 pages of tortured reasoning to reach this sweeping conclusion. As Roberts and Scalia correctly note in their dissents, the problem is that this is better left to the democratic process rather than the courts carving out a yet another new “right” nowhere to be found in the Constitution.
One can rest assured that if you dig deeper into Kennedy’s decisions, one can find ample proof that Anthony Kennedy may be a”conservative” in the grossest sense, but he is clearly an unprincipled conservative.
Instead, this writer believes that Kennedy has avoided retirement recently because he relishes his role as the key swing vote, a role delegated to him by the retirement of Sandra Day O’Connor. The rumors of his impending retirement were mainly fueled by some comments he made at an intern reunion dinner. Although he joked about “an announcement,” other comments made were more forward-looking. He only hired one law clerk for the upcoming term. Some Justices teach courses over the summer; Kennedy canceled this year. This may indicate a slowing down by Kennedy who is 80 years old, but gave the false impression of impending retirement.
However, after 30 years on the Court, Kennedy may have reached the conclusion that he has left enough of a legacy to more seriously consider retirement after the 2017-2018 term. There is only one Justice older than Kennedy (Ginsberg at 84) and she is not going anywhere other than 6 feet under as long as Trump chooses her replacement.
Hence, Kennedy becomes the most obvious retirement during a Trump presidency. And this has the Left very fearful. His retirement would be, in their words, “seismic.”
A Kennedy retirement in June, 2018 would indeed be politically seismic. If anyone thought the rhetoric from the Left was over-the-top regarding Neal Gorsuch, a Kennedy replacement will bring out longer knives. In perhaps one area where conservatives can take hope are the actions of Mitch McConnell who first refused any action on Merrick Garland and second, invoked the nuclear option on Supreme Court nominees. Democrats and the Left lost an important tool of obstruction in getting Supreme Court nominees confirmed, or at least a vote on them.
Also, a Kennedy retirement announcement in June, 2018 would also be important since it would come in the heat of what promises to be a hotly contested midterm election cycle. Let us just assume that Trump’s approval ratings will be in the toilet as we approach June. Some Republican incumbents will have to position themselves away in a political tightrope act. The possibility of changing the direction of the Supreme Court would motivate the conservative base of the GOP like nothing else Trump can do. Replacing Kennedy changes the dynamics of the 2018 midterms completely. Of course, Trump would have to follow through with a conservative choice.
All this is speculation, of course, and before we extol the virtues of any possible Kennedy replacement, we need Kennedy to retire first. There have been examples of Justices working well into their mid- to late 80’s. Talk of retirement may be premature, but the increasing possibility may potentially set up the most interesting, closely-watched, and bombastic midterm election cycle in a long time.