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During President Trump's
1st Year in Office:
U.S. Supreme Court Justice Anthony Kennedy
resigns. Implications for the future of abortion
access, LGBT rights, and other recent court
In 1987, President Reagan nominated Justice Anthony Kennedy to the U.S. Supreme Court. In a routine action, the Senate confirmed the nomination. Later, following Justice Sandra Day O'connor's retirement in 2006, Justice Kennedy took over her role as the primary "swing vote" on the Court. That is, he voted in many cases before the High Court when the remaining Justices were evenly divided 4 to 4 -- thus deciding the case.
Adam Kiptak, writing for the New York Times, said:
"There have been about 51 decisions in which Justice Kennedy joined a liberal majority in a closely divided case, while Chief Justice Roberts dissented. All of those precedents could [now] be in jeopardy, said Lee Epstein, a law professor and political scientist at Washington University in St. Louis.
To be sure, Justice Kennedy often voted with the court’s conservatives. He wrote the majority opinion in the 2010 ruling of Citizens United vs. FEC, which allowed unlimited campaign spending by corporations and unions, and he joined the majority in Bush v. Gore, which handed the 2000 presidential election to George W. Bush, even though Bush lost the popular vote. Justice Kennedy also voted with the court’s conservatives in cases on the Second Amendment and voting rights.
Michael Smerconish hosts the U.S. and International TV program "Smerconish" on weekday mornings on CNN. He commented that Kennedy was never the Chief Justice of the court, but that arguably, no other recent Supreme Court Justice had greater influence on the country than Kennedy.
Other past 5/4 High Court rulings where Justice Kennedy contributed to a majority decision:
In addition to Citizen's United and Bush v. Gore mentioned above, there were other important cases, like:
- 1992: Planned Parenthood vs. Casey. It upheld the abortion access decision of Roe v. Wade.
- 2005: Roper v. Simmons. It prohibited the death penalty for persons who were under 18 years-of-age at the time of their offense.
- 2008: District of Columbia v. Hiller. It recognized an individuals' rights to privately own guns.
- 2013: United States v. Windsor. It struck down the federal 1996 Defense of Marriage Act which had denied same-sex couples federal recognition of their marriages and their Fifth Amendment rights prohibiting self-incrimination and double jeopardy.
- 2015: Obergefell v. Hodges. It legalized same-sex marriage across the U.S. except for the Territory of American Samoa. 1
Justice Kennedy decided to resign:
On 2018-JUN-27, after having spent more that three decades on the Court, Justice Kennedy, 81, decided to resign at the end of July. He sent President Trump the following letter of resignation from the Court to be effective on JUL-31:
His resignation will leave only 8 members on the Court. This is unacceptable because it might result in the court having a tie vote. Under such conditions, the decision of the lower court stands. So, the President was expected to quickly appoint a replacement Justice, to be affirmed by the Senate.
On 2018-JUN-29, President Trump announced that he had narrowed his list of potential Supreme Court nominees. He said that they are all:
"highly talented, brilliant, mostly conservative Justices."
Surprisingly, his list included two women.
He expected to interview six or seven candidates. He said that he would not ask potential nominees what their position is on Roe v. Wade or whether women should have a right to abortion access. He planned to announce his final nominee on JUL-09. A Senate vote to confirm his nominee is expected this fall, before the start of the next session of the Supreme Court in October. Conservative groups like the Judicial Crisis Network and Americans for Prosperity are expected to invest millions in a campaign to support confirmation of a very conservative candidate. Similarly, liberal groups are expected to spend substantial amounts to preserve abortion access, voting-rights, equal marriage rights, etc.
On NBC's "Meet the Press," Senator Maria Cantwell (D-WA) said about her fellow Senators that:
"... this vote could be one of the key votes of their entire career, and they know that no matter what spin comes out of the White House, if they vote for somebody who’s going to change precedent, it could be a career-ending move. ... I think that my colleagues on both sides of the aisle know that."
"We’re a 51-49 Senate [with a small majority of Republicans],
and if [Trump] wants to throw an extreme conservative who basically says, 'I’m not going to follow precedent, I’m not going to follow these laws,' then yes, that to me is a major change."
"You’re not just voting on if you think Trump should have his nominee. You’re voting on whether that nominee is going to change precedent when it comes to a whole host of issues — a woman’s right to choose [to have an abortion and] your access to health care."
Senator Susan Collins (R-ME) said on ABC’s "This Week:"
"A candidate for this important position who would overturn Roe v. Wade would not be acceptable to me because that would indicate an activist agenda that I don’t want to see a judge have, and that would indicate to me a failure to respect precedent." 3,4
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- Colin Dwyer, "A Brief History Of Anthony Kennedy's Swing Vote — And The Landmark Cases It Swayed," WBUR News, 2018-JUN-27, at: http://www.wbur.org/
- "Justice Anthony Kennedy's retirement letter," CNN Politics, 2018-JUN-28, at: https://www.cnn.com/
- Emily Birnbaum, "Dem. senator says Supreme Court vote could be 'career ending' for lawmakers," The Hill, 2018-JUL-01, at: http://thehill.com/
- Jordan Fabian, "Trump to announce Supreme Court pick July 9; two women on short list," The Hill, 2018-JUN-29, at: http://thehill.com/
How you may have arrived here:
Original posting: 2018-JUL-06
Author: B.A. Robinson