Recent speculation has mounted regarding the potential retirement of Supreme Court Associate Justice Anthony Kennedy. Widely seen as the swing vote on key issues, his exit from the court would have enormous ramifications. While viewed as moderate overall, he has repeatedly sided with the justices who far more liberally interpret the Constitution when cases involving social issues are brought before the court. As the second oldest justice, and the longest serving, his retirement is one of the more likely to happen in the near future.
While still in the rumor stage, the potential vacancy has been discussed at the very highest levels of power. Even President Donald Trump seemed unsure of Kennedy’s future on the court when asked about it by The Washington Times in May:
I don’t know. I have a lot of respect for Justice Kennedy, but I just don’t know. I don’t like talking about it. I’ve heard the same rumors that a lot of people have heard. And I have a lot of respect for that gentleman, a lot.
One of the most critical issues that could be affected is the matter of life and the legality of abortion protected by the federal government. Any direct challenge to Roe v. Wade today would most likely result in a 5-4 vote upholding it, as Kennedy has only shown a willingness to vote with the more traditional justices in cases such as Gonzales v. Carhart, which upheld the Partial-Birth Abortion Ban Act.
Theoretically, replacing Kennedy with another strict constructionist would allow a ban on early term abortions to be upheld as well. This would present a profound change in the culture of life within the United States. Under the Roe decision, it is considered unconstitutional to put any significant restrictions on first-trimester abortions, even though they account for the vast majority performed. There has not been a pro-life majority on the court since this decision in 1973. The reality of having a similar case decided on a basis which is actually constitutional and reflects an American respect for human life is more of a possibility now than it has ever been since.
Even if Kennedy were not the next to retire, Justice Ruth Bader Ginsburg is several years older than him, and her future longevity on the court is also rife with speculation. A potential two-thirds majority of pro-life justices on the Supreme Court is something that hasn’t been seen in two generations and would make a profound difference in the moral future of the country for many years to come. This also may impact other social concerns of significant importance as well.
Another major issue that could be affected would be the Obergefell v. Hodges ruling in 2015 which guaranteed a legal right to same-sex marriage. This overrode the earlier Baker v. Nelson case where a unanimous court agreed that the Constitution does not include this as a right. The Obergefell case was also decided by a 5-4 majority, with Kennedy joining the left-wing of the court. It is deeply troubling that such a small number of people can effectively redefine the definition of such an integral societal institution, as well as override the will of the citizens of many states.
Further, the Lawrence v. Texas case in 2003 threw out all remaining state sodomy bans, with Kennedy and now retired Justice Sandra Day O’Connor joining the more liberal justices in the majority. It is another example of the court using its authority to have a huge impact on our culture in a way which would certainly have the founding fathers turning in their graves. The Constitution is there to protect the rights of American citizens. It is not there to be used to justify any radical view a few individuals wish to impose on hundreds of millions of others.
The importance of the Judicial Branch of the United States government cannot be understated. It has the power to reverse the will of a state or even an entire nation based on nothing but personal whim, even if the Constitution was not necessarily meant to be used in such a way. The impact it has had on the cultural values of the country has been shattering, to say the least. It is clear that with just one more well-selected justice who interprets the Constitution the way it was written, the Supreme Court could begin to restore the Judeo-Christian morality that we have drifted far away from as a nation.