by Shane Vander Hart
Last summer, rumors abounded that Associate Supreme Court Justice Anthony Kennedy would retire, but nothing came of it.
Those rumors were given new life as Politico released the audio of a speech made by Senator Dean Heller (R-Nev.) in Las Vegas last week. Heller hopes that a Kennedy retirement would rally his base in a race where his reelection is at best uncertain.
“Kennedy is going to retire around sometime early summer. Which I’m hoping will get our base a little motivated because right now they’re not very motivated. But I think a new Supreme Court justice will get them motivated,” Heller said.
Heller’s prediction is opportunistic, and we should take it with a grain of salt. That said, the 82-
year-old justice will eventually retire.
Nominated by President Ronald Reagan, Kennedy assumed his position on the bench in 1988 after his confirmation by the U.S. Senate. Upon Justice Sandra Day O’Conner’s retirement, he took the mantle as the court’s “swing vote.”
What will his retirement mean provided there are not any other changes to the court?
After upholding a Minnesota law that required parental notification for abortion in Hodgson v. Minnesota in 1990, Kennedy joined the plurality opinion that reaffirmed Roe v. Wade in the Planned Parenthood v. Casey decision in 1992.
In 2006, he sided with the majority upholding the federal partial-birth abortion ban in Gonzales v. Carhart.
While he believes the Casey decision allows some restrictions, he still thinks abortion on demand is a right permitted by the Constitution. Replacing Kennedy with an originalist jurist would be a net gain for the pro-life community.
Kennedy sided with the majority in United States v. Windsor that struck down section 3 of the Defense of Marriage Act in 2013.
He wrote in the majority opinion, “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”
This opinion gave us an idea of what direction he would go two years later. In 2015, he wrote the majority decision in Obergefell v. Hodges that struck down all same-sex marriage bans nationwide.
Kennedy has not been a friend in the battle to preserve marriage.
Kennedy has been a mixed bag in matters of religious liberty and the freedom of association. In 2010, he joined the majority in Christian Legal Society v. Martinez that upheld the University of California Hastings College of Law’s policy that required student organizations to allow any student to join.
In Boy Scouts of America v. Dale in 2000, he voted with the majority to uphold the organization’s right to bar homosexuals from being Scoutmasters.
In 2014, he sided with the majority in Burwell v. Hobby Lobby, a decision that struck down the Obamacare contraceptives mandate.
Kennedy will likely be the deciding vote in the Masterpiece Cakeshop v. Colorado Civil Rights Commission decision. Kennedy made an insightful comment during the oral arguments of that case which should give religious liberty advocates hope.
“Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual,” Kennedy said to Colorado’s Solicitor General, Frederick Yarger, “It seems to me that the state in its position here has neither been tolerant nor respectful of Mr. Phillips religious beliefs.”
There are a whole host of other issues we can look at — like gun control, where he sided with the majority protecting gun rights in District of Columbia v. Heller, or alternatively, how he sided with the majority to protect free speech in Citizens United v. FEC.
Replacing Kennedy with a solid, originalist jurist like the newest member of the Court, Associate Justice Neil Gorsuch, would dramatically shift the court towards originalism and, hopefully, lead to positive outcomes in some important cases before the Court. Replacing him with the wrong jurist would be a disaster.
So far, President Donald Trump’s track record for judicial picks has been excellent. There will be a significant fight for this crucial next vacancy, whether it is Kennedy or someone who tacks to the activist side of the Court. Let’s hope President Trump’s good track record continues.