Kennedy leaving Supreme Court
Exit gives Trump chance to shift court to the right.
Justice Anthony WASHINGTON — Kennedy announced Wednesday that he is retiring from the Supreme Court, a move that gives President Donald Trump the chance to replace the court’s pivotal justice and dramatically shift the institution to the right, setting up a bitter partisan showdown on Kennedy’s successor.
“It has been the greatest honor and privilege to serve our nation in the federal judiciary for 43 years, 30 of those years on the Supreme Court,” Kennedy, who is stepping down July 31, said in a statement.
Kennedy informed the president of his decision in a letter.
“My dear Mr. President,” Kennedy wrote. “For a member of the legal profession it is the highest of
honor to serve on this court. Please permit me by this letter to express my profound gratitude for having had the privilege to seek in each case how best to know, interpret and defend the Constitution and the laws that must always conform to its mandates and promises.”
Kennedy, wearing a red tie under his robes, did not give any hint of his planned announcement when the court convened Wednesday morning. His wife, Mary, was in the audience, as is common for spouses of the justices when the court is in session. But Kennedy sat quietly, leaning back at times in his high-backed chair as colleagues delivered the final two opinions of the term.
President Donald Trump, in remarks to reporters from the Oval Office Wednesday afternoon, said Kennedy has “been a great justice of the Supreme Court” and added that the effort to replace him would begin immediately.
“Hopefully,” he said, “we will pick someone who is just as outstanding.”
Kennedy, 81, joined the court in 1988 and has been its most important member for more than a decade. The Californian, who was chosen by President Ronald Reagan, cast the deciding votes on the court’s controversial Citizens United campaign finance decision, the constitutional right to samesex marriage and the continued viability of affirmative action.
On almost every major issue that has faced the court in recent years, neither the court’s liberal, Democratic-appointed justices nor Kennedy’s fellow Republican-appointed conservative colleagues could prevail without his swing vote.
His decision likely will make Chief Justice John Roberts the central justice on the nine-member court. Roberts, 63, has shown himself to be well to the right of Kennedy.
Washington could be in for an epic battle over Kennedy’s replacement. While Senate Democrats lack the numbers to deny the seat to Trump’s pick, they will ratchet up the stakes of the choice.
It will be the first time since Justice Clarence Thomas replaced Thurgood Marshall more than 25 years ago that a new justice could radically change the direction of the court. Since then, new members added to the court have replaced justices of the same general ideology.
Kennedy is a courtly presence on the court, with a gentlemanly demeanor and a jurisprudence based on the respect the Constitution provides for individual liberty and dignity.
He was a compromise choice for Reagan, who had first nominated the more controversial conservative Judge Robert Bork for the position. The Senate voted him down.
Kennedy has been a disappointment to the right, which has been unable to forgive his vote to uphold the basic underpinnings of Roe v. Wade, which guaranteed a woman’s right to choose an abortion. And Kennedy has written each of the court’s major gay rights decision, including Obergefell v. Hodges, which said the Constitution requires that gay couples be allowed to marry.
Liberals came to value Kennedy because he was the best they could hope for. But Kennedy most often votes with the court’s conservatives: He is further to the right on law-and-order issues than Justice Antonin Scalia was, he is comfortable with the court’s protective view of business, and he shared the losing view that the entire Affordable Care Act was unconstitutional.
His belief that campaign finance regulation often violates free speech was exemplified in his authorship of the opinion in Citizens United, which has opened the door for an explosion of big money in elections.
Trump’s nominee to replace him will likely share those views but not Kennedy’s liberal opinions on social issues.
Trump persuaded evangelicals and other conservatives to support him based on the next president’s ability to shape the Supreme Court, a promise he has already begun to fulfill. Early in his term, he successfully placed conservative Neil Gorsuch on the bench, and he could have the chance to fill more openings.
Of the court’s four liberals, Justice Ruth Bader Ginsburg is 85 and Justice Stephen Breyer turns 80 this summer.
Gorsuch’s appointment returned the court to the status quo that existed before Scalia died. But a court without Kennedy would be a different place.
With Kennedy on board, a five-member majority struck down a Texas law that it said used protecting women as a pretext for making abortion unavailable, and the court continued a limited endorsement of affirmative action.
Many if not all of those holdings would be at risk in a court with five consistent conservatives, the oldest being 70-year-old Justice Clarence Thomas.