Key justice has strong incentive to stay on court
spoken publicly about the subject, except, perhaps, in remarks at a dinner he held for his law clerks on June 24.
According to the legal publication Above the Law, Kennedy said something like, “There has been a lot of speculation about a certain announcement from me tonight. And that announcement is, the bar will remain open after the end of the formal program.”
The most plausible interpretation of Kennedy’s attempt at humor, said David Levine, a law professor at UC Hastings in San Francisco, was that “he’s not going to dignify these rumors ... coming from people who want him to move aside. There’s no evidence that he’s been musing about retirement.”
UCLA Law Professor Adam Winkler read it differently. Reports of Kennedy’s impending departure were coming from “all the inside lawyers who circle around the Justice Department,” he said, and Kennedy passed up an opportunity to put those rumors to rest at the dinner.
“It’s obvious that he’s flirting with the issue of retirement,” Winkler said.
But both professors, and other legal commentators, agreed that Kennedy has a powerful incentive to stay where he is: As a relatively moderate conservative on an ideologically divided court, he holds the deciding vote on its most contentious issues.
“His position gives him immense influence on the shape of American life,” Winkler said.
Levine called it “the role of a lifetime.” And Jesse Choper, a UC Berkeley law professor and former Supreme Court law clerk, said Kennedy is “the single most powerful public official in the United States.”
Perhaps the most incendiary issue is the right to abortion, legalized nationwide in 1973 in the Roe vs. Wade decision and a target of religious and political conservatives for decades. Trump has said his Supreme Court appointees would vote “automatically” to overturn Roe and allow states to limit or outlaw abortion, though a 2003 California law would preserve abortion rights in this state.
Kennedy, appointed by President Ronald Reagan in 1988, has cast some antiabortion votes, notably his 2007 majority opinion upholding a federal ban on a second-trimester procedure that foes dubbed “partial-birth abortion.” But he provided crucial votes for a 1992 ruling that upheld the core of Roe vs. Wade and for a June 2016 decision striking down a Texas law that sought to close abortion clinics by requiring them to meet hospital standards.
There are no abortion cases on the court’s current docket. But many states have continued to pass laws restricting the procedure, and a shift in the court could encourage lawmakers in conservative states to push for an outright ban and a reconsideration of the 1973 precedent.
Kennedy’s departure during Trump’s administration “would probably lead to the overruling of Roe,” said Michael Dorf, a Cornell University law professor who was a law clerk for Kennedy in 1991-92. Others predicted the court would move more cautiously, upholding Texas-type regulations of clinics and physicians, but all agreed that abortion would become less accessible.
Other close decisions on contested social issues could also be vulnerable. In 2015, Kennedy led a divided court in
upholding a federal ban on housing practices that unintentionally harmed racial minorities. A year later, his majority opinion allowed the University of Texas to consider race as a factor in admissions.
He has also written rulings, over dissents from more conservative justices, that banned the death penalty for juveniles and for rapists whose victims survived.
But the issue with which Kennedy is most closely identified is gay rights. He has written all of the court’s major rulings on discrimination based on sexual orientation: overturning a state’s ban on local gay rights measures in 1996, barring states from criminalizing gay sex in 2003, striking down a ban on federal benefits for same-sex spouses in 2013 and, finally, legalizing same-sex marriage nationwide in 2015.
Those cases “will be in constitutional law textbooks read by law students 100 years from now,” UCLA’s Winkler said. “Another Trump appointment to the Supreme Court puts at risk Justice Kennedy’s legacy in gay rights.”
Kennedy joined the majority in last week’s 6-3 ruling requiring Arkansas to list a married lesbian couple as parents on their child‘s birth certificate. It was also the occasion for Trump’s first appointee, Neil Gorsuch, to take his first public position in a gay rights case — a dissenting opinion in the state’s favor, joined by Justices Clarence Thomas and Samuel Alito.
Gorsuch’s arrival may also have been the deciding factor in the court’s recent vote to take up an appeal by a Colorado bakeshop owner who refused, on religious grounds, to prepare a wedding cake for a gay couple. State courts refused to exempt the owner from a Colorado law prohibiting discrimination based on sexual orientation.
After previously denying review of similar cases, the justices could use the Colorado case, to be argued in the upcoming term, to allow religious objections to gay rights laws in states such as California — a decision that most likely will turn on Kennedy’s vote.
And the departure of Kennedy, or a more liberal justice such as 83-year-old Ruth Bader Ginsburg or 78-year-old Stephen Breyer, would embolden states that have been reluctant to recognize same-sex marriages despite the 2015 ruling, returning the issue to a reconstituted Supreme Court.
Levine, of UC Hastings, said he thinks Kennedy “relishes being the man in the middle” and will try to stay on the court, and preserve its current balance, as long as he feels up to it.
Trump’s nomination of Gorsuch, a respected appeals court judge who was once a Kennedy law clerk, was widely viewed in legal circles as an attempt to reassure Kennedy that he would be replaced by a wellqualified successor upon retirement. But Levine said the president has undermined any such reassurance with his continual attacks on “so-called judges” and “much-reversed courts” that rule against him.
Kennedy is “devoted to the institutions of the court. I think that sort of thing is offensive to him,” Levine said. “I would think he’d be reluctant to give up his seat to a person who would disparage the court.”