COMMENTARY: What the high court would look like without Kennedy


With the U.S. Supreme Court handing down this term’s last decision Monday, great attention is being focused on the possibility that Justice Anthony Kennedy might soon announce his retirement.

Neil Gorsuch replacing Antonin Scalia largely restored the court’s ideological balance to what it was before Scalia’s death. But if Kennedy, who is 80, retires and President Donald Trump replaces him with a conservative in the Gorsuch or Scalia mold, it will create the most conservative court since the mid-1930s.

At this point, no one knows Justice Kennedy’s thinking about whether or when he will retire. Obviously, he is aware that his being replaced with a much more conservative justice would dramatically change the court’s ideology and could lead to some of his most important opinions being overruled. I assume that it must be very difficult to leave his pivotal role on the nation’s highest court.

Since the retirement of Justice Sandra Day O’Connor in January 2006, Kennedy has been the “swing” justice on a court otherwise divided between four Republican-appointed conservatives and four Democratic-appointed liberals. Last year, he voted in the majority in 98 percent of all of the cases, something unprecedented in recent memory. I advise lawyers arguing before the Supreme Court to make their briefs a shameless attempt to pander to Justice Kennedy; if the clerk of the court will allow it, I urge them to put Anthony Kennedy’s picture on the front of their briefs.

Overall, Kennedy has voted with the conservatives more than with the liberal justices. He wrote the court’s opinion in Citizens United v. Federal Election Commission, which held that corporations can spend unlimited amounts of money in election campaigns. He wrote for the court’s conservative majority in Gonzales v. Carhart, upholding the federal Partial Birth Abortion Ban Act. He was a fifth vote in District of Columbia v. Heller, which held that the Second Amendment protects a right of individuals to have guns in their homes. He has consistently been with conservative majorities rejecting claims that religious symbols on government property or government aid to religion violate the Constitution.

But there are notable areas where he was with the court’s liberal bloc, which is why he truly has been the swing justice. His greatest legacy is in the area of expanding rights for gays and lesbians. There have been four Supreme Court decisions providing constitutional protection for gays and lesbians. Each was written by Anthony Kennedy. Kennedy wrote the opinion in Lawrence v. Texas in 2003 that state governments cannot criminally punish private consensual homosexual activity. Likewise, he was the author of two opinions in 5-4 cases, in 2013 and 2015, finding unconstitutional laws prohibiting marriage equality.

He also has been key in limiting application of the death penalty, though he has given no indication that he would join the liberal justices who want to find it to be inherently unconstitutional. For example, he wrote the opinion in Roper v. Simmons in 2005 that the death penalty cannot be imposed for crimes committed by juveniles and in Kennedy v. Louisiana in 2008 that the death penalty cannot be used for the crime of child rape.

He has been instrumental in limiting presidential power in the context of the war on terror. One of his most important opinions was in Boumediene v. Bush in 2008, which held that it was unconstitutional for Congress to suspend the writ of habeas corpus and bar Guantanamo detainees from using it to have access to the federal courts.

In some areas Justice Kennedy has shifted his views over time. Last year, he wrote the opinion in Fisher v. University of Texas, Austin, upholding an affirmative action program. This was the first time he ever voted to uphold any affirmative action program. Also last year, in Whole Women’s Health v. Hellerstedt, he voted to strike down a Texas law imposing restrictions on access to abortion, only the second time he has done that since joining the court in February 1988.

Few modern justices have had as much influence on constitutional law as Anthony Kennedy. For a long time now, it really has been the Kennedy Court. The question, and likely no one but Kennedy knows, is how long it will continue to be that.