The Court After Kennedy

Professors John Harrison, A. E. Dick Howard Reflect on the Retiring Justice’s Legacy and What’s Next
Anthony Kennedy

Justice Anthony Kennedy announced his retirement from the Supreme Court on Wednesday.

June 28, 2018

The retirement of U.S. Supreme Court Justice Anthony Kennedy — long considered the court’s swing vote in closely divided decisions — marks a sea change in the history of the institution.

A. E. Dick Howard
A. E. Dick Howard

Kennedy, who has served on the court since 1988, is the recipient of the 2003 Thomas Jefferson Foundation Medal in Law; the medals are the highest external honor the University offers. He has hired eight graduates of the University of Virginia School of Law to serve as his clerks over the years.

John Harrison
John Harrison

Professors A. E. Dick Howard ’61 and John Harrison offered their thoughts on Kennedy’s legacy and what’s next for the court.

How will Justice Kennedy’s time on the Supreme Court be remembered?

Howard: Justice Kennedy could be characterized, during his time on the court, as having been a conservative but one not in lockstep with his colleagues on the court’s right flank. Endowed with a strong libertarian streak, he argued eloquently for qualities of dignity and liberty in a free society. Thus, he could come down on the more liberal side of an issue, a striking example being his majority opinion finding constitutional protection for same-sex marriage.

Kennedy’s innate conservatism found him with the majority in decisions handing the 2000 election to George W. Bush, curtailing the ability of Congress to legislate limits on money in politics, cutting the heart out of the Voting Rights Act of 1965, and upholding President Donald Trump’s travel ban.

Yet he could join the court’s liberals in placing significant curbs on capital punishment, in limiting the use of life sentences with the chance of parole, in refusing to overrule Roe v. Wade. Especially memorable are his string of gay rights opinions, stretching from the court’s decision to strike down Texas’s anti-sodomy law to the more recent same-sex marriage opinion.

Justice Kennedy proved himself to be anything but an ideologue. Rebuffing claims of originalism, he was clearly in the “living Constitution” camp, declaring that the Constitution is capable of protecting claims of liberty which would not have occurred to the document’s framers.

There is much to admire about Justice Kennedy. As a justice, he was typically open-minded, ready to listen to and weigh competing arguments. Those qualities may at times have frustrated his colleagues, but they added notably to the court’s search for justice.

Harrison: Justice Kennedy’s career on the Supreme Court will also be remembered as illustrating three important features of American constitutional politics. First and perhaps most obvious is that the federal courts respond to political developments through changes in personnel. That is especially true when, as now, the main political parties differ substantially in the constitutional principles they espouse. If the Republican-controlled Senate confirms a nominee from the Republican president, the new justice almost certainly will differ dramatically from the two most recent appointees, who were nominated by a Democratic president to a Democratic-controlled Senate.

Second, because the parties are conduits for popular opinion on constitutional issues, the partisan alignment of the presidency and Senate has profound effects. The seven most recent justices were appointed by presidents whose party controlled the Senate; not since Justice Clarence Thomas has the Senate confirmed a nominee by a president of the opposite party. The most recent such nomination, that of Judge Merrick Garland, was not even acted on by the Senate. Justice Kennedy was nominated by a Republican president after a Democratic-controlled Senate rejected his first nominee, Judge Robert Bork. Justice Kennedy was acceptable to the Democratic majority and his positions on the Supreme Court have differed from those Judge Bork likely would have taken with respect to some very high-profile issues, notably whether to overrule Roe v. Wade. Divided government produced an appointee whose votes on the court have sometimes pleased and sometimes displeased the parties between which government was divided.

Third, the partisan division between the presidency and the Senate that led to Justice Kennedy’s appointment was the result of elections in 1984, when Ronald Reagan was re-elected, and 1986, when control of the Senate shifted from Republicans to Democrats. Justice Kennedy wrote the court’s opinion in Obergefell v. Hodges, the same-sex marriage case, in 2015. Many of the issues the Supreme Court decides were topics of intense political controversy in the 1980s, but same-sex marriage was not one of them. The consequences of judicial appointments, especially Supreme Court appointments, often long outlast the politics that produce them.

What will the nomination and confirmation process look like?

Howard: It’s not difficult to imagine the kind of nominee we will see from President Trump. The nominee will be young, pro-life and manifestly conservative. Recall that, even before the 2016 election, Trump put out a list from which he said he would choose a nominee. In this, as in Trump’s nominations to the lower federal courts, the Federalist Society has had a major hand.

As to the confirmation process, expect speed — Mitch McConnell has already promised as much. Democrats will say that the Senate should wait until after the November elections, but do not expect the Republicans to consider themselves bound by the precedent of their having put President Barack Obama’s nomination of Merrick Garland on hold pending the 2016 presidential election. Senate Democrats will be tempted to fight tooth and nail to derail the nomination. Will John McCain come to the floor to vote? How will Susan Collins and Lisa Murkowski (both of whom support a woman’s right to choose) vote? But there are three Democratic senators running for re-election in red states who voted to confirm Neil Gorsuch. The Democrats can’t afford to lose a single vote. All in all, look for Senate confirmation of whomever President Trump decides to nominate.

Harrison: The selection of Justice Kennedy’s successor will show today’s constitutional politics, with political parties that have sharply contrasting constitutional principles, at work. The president is likely to select a nominee who is closely associated with the constitutional principles of conservatives, principles that have been worked out in some depth over the past 30 years. The nominee likely will be relatively young, and so will be expected to serve long beyond the political moment that produced this president and Senate. Because both parties have reasonably well-defined constitutional principles that are in sharp contrast with one another, and especially because the nominee will be expected to serve for decades, the controversy over the confirmation will be extremely intense.

What will the court be like when the new justice has been seated?

Howard: The changes in the Supreme Court will likely be profound. The court has been closely divided in many of the more controversial areas, such as abortion, affirmative action, religion and voting rights. Moreover, as often as not, Justice Kennedy has provided the fifth and decisive vote in many of those cases. A moderately conservative but often libertarian voice will be replaced by one who almost certainly will be, like the late Justice Scalia and Justice Gorsuch, an acolyte of textualism and originalism. The new justice’s votes will shift the court markedly to the right.

Not only will the change be profound, it will be long-lasting. A young justice will be on the court for decades. Moreover, there could well be another vacancy before Trump’s first term runs its course — more if he serves a second term. Consider, too, that the older justices are on the court’s liberal flank — Justice Ruth Bader Ginsburg is 85, and Justice Stephen Breyer is 79. The youngest justices are on the conservative wing — Chief Justice John Roberts is 63, and Justice Neil Gorsuch is 50.

Depending on the uncertainties of life and politics, the court may well be in conservative hands for a generation or more. Judicial activism will not be dead, but it will be the activism of the right, not the left.

Other Professors on Kennedy

  • Kennedy’s Opinions on Gay Rights Seem Secure, Argues Professor Saikrishna Prakash (Politico Magazine) More
  • Kennedy’s Departure a Threat to Environmental Regulation, Observes Professor Jonathan Cannon (The Atlantic) More
  • Kennedy Was a Traditionalist on Free Speech Rights, Says Professor Frederick Schauer (NBC News) More

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