Supreme Court Associate Justice Anthony Kennedy announced his retirement in a June 27th letter to President
Trump. “It is the highest of honors to serve on this Court,” he wrote. He also expressed his “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.”
Appointed to the Supreme Court by President Ronald Reagan in July 1988, Kennedy spent 43 years in the federal judiciary system with 30 of those years on the Supreme Court. Kennedy official steps down on July 31.
While retirement rumors have accelerated recently regarding Justice Kennedy who celebrates his 82nd birthday on July 23, the official announcement has created a political firestorm. After all Kennedy, along with his former colleague Justice Sandra Day O’Connor, has frequently served as the swing vote on the court, a situation which only increased in frequency with O’Connor’s resignation from the Court in 2006. For instance, in 2013, in the landmark case Obergefell v. Hodges which legalized same sex marriage, Kennedy sided with his colleagues on the left, Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.
By contrast, in Janus vs. AFSCME, his final case on the Court he ruled with his colleagues on the right: Justices Samuel Alito, Neil Gorsuch, John Roberts and Clarence Thomas. In Janus, the Supreme Court ruled that union fees in the public sector violate the First Amendment overturning the decision in the 1977 Abood v. Detroit Board of Education which had permitted this type of fees.
Kennedy, despite being a devout Catholic, is pro-choice. Therefore, it is no surprise that abortion has become the lightning rod topic associated with his resignation. The left are acting as if doomsday is imminent and have gone off the cliff with their proclamations that Roe V. Wade is at risk of reversal. They are extremely worried about the fact that President Trump now has the opportunity to appoint the second Supreme Court justice in less than two years. And given the age of some of the current justices (Ruth Bader Ginsburg 85, Stephen Breyer 79 and Clarence Thomas 70), there is a fear that President Trump might have the opportunity to appoint up to five Supreme Court justices, especially if he serves two terms. As a result, the discussions of term limits for Supreme Court justices have started percolating again.
The right, by contrast, is delighted. By all accounts, the feedback on President Trump’s first Supreme Court appointee Neil Gorsuch who previously clerked for Justice Kennedy has been incredibly positive. Furthermore, those who were uncomfortable with Kennedy’s more liberal positions on topics such as abortion, same sex marriage etc. are relishing the opportunity to appoint a justice whose positions on these issues are more to the right.
Legal scholars, congress and the American people have long known that this day of reckoning would one day come. When President Reagan nominated Kennedy on November 11, 1987, he described him in his official remarks as a “true conservative”. Constitutional scholars described Kennedy as being similar in his approach to that of Justice Lewis Powell, the Supreme Court justice he was replacing.
Despite these remarks, Reagan was well aware that many Republicans did not think that Kennedy was conservative enough, he was also cognizant of a willingness among the GOP to compromise given that Kennedy was the third nominee for the seat following the failed nominations of Judge Robert Bork and Judge Douglas Ginsburg. A November 1987 New York Times article stated that despite Kennedy’s voluminous record as a federal judge, “little has been gleaned about his opinion on key issues on which the Supreme Court is divided. These include abortion, affirmative action, and the relationship between church and state.”
In the same article, Senator Charles Grassley (R-Iowa), who was then a member of the then Democrat-controlled Senate’s Judiciary Committee, (the committee he now heads), commented, “There’s a basic compromise of principle that is not satisfying to me. But I suppose I am resigned. There’s a practical aspect.”
2018 also has its own share of practical considerations including a Republican president and a Republican controlled senate. President Trump is the personification of pragmatism despite the narrative of irrational behavior peddled by the left and the liberal media. To that end, his initial list of 25 Supreme Court Nominees includes two judges who previously clerked for Justice Kennedy, Brett Kavanaugh of Maryland, U.S. Court of Appeals for the District of Columbia and Raymond Kethledge of Michigan, U.S. Court of Appeals for the Sixth Circuit.
Speaking of practical considerations, there is one more for the right to consider. It has been said by judicial analysts, such as Judge Andrew Napolitano, that after Kennedy leaves the bench, the least conservative of the conservatives in the Supreme Court will assume the role of the swing vote. Currently, that individual is Chief Justice Roberts. If Roberts does indeed become the swing vote, it will be the first time in history that the chief justice has assumed this position. Perhaps conservatives need to prepare themselves for this potential outcome.
Image: Excerpted from: Chuck Kennedy (Executive Office of the President of the United States)derivative work: KimChee (talk) – Obama_waves_State_of_the_Union_2011.jpg, Public Domain, https://commons.wikimedia.org/w/index.php?curid=12833347