Associate Justice Anthony Kennedy Announces Retirement
After thirty years on the bench, during which he played a central role in some of the Supreme Court's most significant rulings, Justice Anthony Kennedy is retiring.
Contrary to earlier reports, and after the Supreme Court had left the bench at the end of today’s opinion announcements, the Supreme Court announced early this afternoon that Justice Anthony Kennedy, who has been on the Court since 1988, will be retiring effective July 31st:
WASHINGTON — Justice Anthony M. Kennedy announced on Wednesday that he would retire, setting the stage for a furious fight over the future direction of the Supreme Court.
Justice Kennedy, 81, has long been the decisive vote in many closely divided cases. His retirement gives President Trump the opportunity to fundamentally change the course of the Supreme Court.
A Trump appointee would very likely create a solid five-member conservative majority that could imperil abortion rights and expand gun rights.
Justice Kennedy’s voting record was moderately conservative. He wrote the majority opinion in Citizens United, 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. He also voted with the court’s conservatives in cases on the Second Amendment and voting rights.
But Justice Kennedy was the court’s leading champion of gay rights, and he joined the court’s liberals in cases on abortion, affirmative action and the death penalty.
More from The Washington Post:
Justice Anthony M. Kennedy announced Wednesday that he is retiring from the Supreme Court, a move that gives President Trump the chance to replace the court’s pivotal justice and dramatically shift the institution to the right, setting up a bitter partisan showdown on Kennedy’s successor.
“It has been the greatest honor and privilege to serve our nation in the federal judiciary for 43 years, 30 of those years on the Supreme Court,” Kennedy, who is stepping down July 31, said in a statement.
Kennedy informed the president of his decision in a letter.
“My dear Mr. President,” Kennedy wrote. “For a member of the legal profession it is the highest of honor to serve on this court. Please permit me by this letter to express my 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.”
His decision likely will make Chief Justice John G. Roberts Jr. the central justice on the nine-member court. Roberts, 63, has shown himself to be well to the right of Kennedy.
Washington could be in for an epic battle over Kennedy’s replacement. While Senate Democrats lack the numbers to deny the seat to whoever Trump chooses, they will ratchet up the stakes of the choice.
It will be the first time since Justice Clarence Thomas replaced Thurgood Marshall more than 25 years ago that a new justice could radically change the direction of the court. Since then, new members added to the court have replaced justices of the same general ideology.
Kennedy is a courtly presence on the court, with a gentlemanly demeanor and a jurisprudence based on the respect the Constitution provides for individual liberty and dignity.
He was a compromise choice for Reagan, who had first nominated the more controversial conservative Judge Robert Bork for the position. The Senate voted him down.
Kennedy has been a disappointment to the right, which has been unable to forgive his vote to uphold the basic underpinnings of Roe v. Wade, which guaranteed a woman’s right to choose an abortion. And Kennedy has written each of the court’s major gay rights decision, including Obergefell v. Hodges, which said the Constitution requires that gay couples be allowed to marry.
Liberals came to value Kennedy because he was the best they could hope for. But Kennedy most often votes with the court’s conservatives: He is further to the right on law-and-order issues than Justice Antonin Scalia was, he is comfortable with the court’s protective view of business, and he shared the losing view that the entire Affordable Care Act was unconstitutional.
His belief that campaign finance regulation often violates free speech was exemplified in his authorship of the opinion in Citizens United, which has opened the door for an explosion of big money in elections.
Whoever Trump nominated to fill Kennedy’s seat will likely share those views but not his liberal opinions on social issues.
Here are Kennedy’s letter to the President and the press release from the Supreme Court:
Letter from Justice Kennedy announcing the news: pic.twitter.com/3JzlqI8amZ
— Jake Tapper (@jaketapper) June 27, 2018
BREAKING: Supreme Court Justice Anthony Kennedy to retire effective July 31 after 30 years of service to the Court. pic.twitter.com/LhiuvM8dWN
— ABC News (@ABC) June 27, 2018
It’s somewhat of a surprise that Kennedy chose not to announce this opinion from the bench, but that is somewhat in line with the way he has conducted himself on the bench for the past thirty years. As I noted this morning, this announcement caps two years worth of speculation that Kennedy, who will turn 82 in July, may be looking to step aside now that there is a Republican President and a Republican Senate. Last April, for example, Senate Judiciary Committee Chairman Chuck Grassley dropped hints of a potential retirement at the end of last year’s term. Grassley didn’t mention Kennedy by name, but it was clear who he was referring to. The speculation around Kennedy picked up again during the final days of the term last June. As I noted on both occasions, though, one major signal that Kennedy would not retire could be found in the fact that he had hired a full slate of law clerks for the upcoming October 2017 Term as had all of the other Justices on the Court. While this isn’t necessarily a dead giveaway that a Justice isn’t retiring, it is a strong sign that they’re planning on being around for the new term. In the end, there was no retirement by Kennedy or anyone else. Several days after the end of last June’s June term, though, it was reported that Kennedy was advising law clerks he was interviewing for the term that begins in October 2018 that he could decide to retire at the end of October 2017 Term, which means that if they were hired they would end up being reassigned to other Justices, or potentially to whoever might be appointed and confirmed to replace him. More recently, Nevada Senator Dean Heller speculated about a Kennedy retirement in a speech to supports but this seemed more like an effort by the Senate’s most vulnerable Republican to energize his base Additionally, Grassley hinted at a possible retirement again last month but, as with Heller’s remarks it seems clear that this was meant more for consumption by the base than a revelation of any actual inside information.
As I’ve said in the past, there is no way to understate the significance of this announcement both to the Court itself and to the political process in what is already a red-hot midterm election cycle. For much of his thirty-year career on the court, and most especially in the years since Justice Sandra Day O’Connor retired, Kennedy has been the swing vote on some of the Supreme Court’s most significant cases. Regardless of who the President is and what party controls the Senate, replacing him is going to have a significant impact on the direction of the Supreme Court and American legal thought for the better part of the next generation. To pick just one example, Kennedy has been a decisive vote in some of the Court’s most significant rulings dealing with LGBT right going back more than 20 years. He wrote the majority opinion in Roemer v. Evans, a 6-3 decision from 1996 in which the Court struck down a Colorado law that purported to bar local jurisdictions from extending civil rights protections to gays and lesbians. He also spoke for the majority in Lawrence v. Texas in 2003, which overturned a 1986 ruling and held that laws making consensual sexual relations a crime were unconstitutional. More recently, he was the fifth vote and the author of the majority opinion in United States v. Windsor, the case that struck down the most restrictive part of the Defense of Marriage Act and lit the spark of litigation that brought us to yesterday’s decision. And, finally, of course, he wrote the majority opinion in Obergefell v. Hodges, which just three years ago struck down the remaining laws barring same-sex marriage. Replacing him, even if it’s with a conventional conservative like Neil Gorsuch, is going to have a huge impact on how the Court handles a whole host of issues going forward.
Politically speaking, this is going to make the months between now and the midterms quite interesting to say the very least. First, of course, we’ll have to wait for the President to announce a nominee, a process that could take weeks or could take a short period of time given the fact that the Senate will need to act quickly to get a nominee confirmed before the new term starts in October. Once that happens, the Republican leadership in the Senate will likely want to move quickly to get the nominee vetted and get the hearings before the Senate Judiciary Committee scheduled so that the full Senate can vote on the nomination as soon as possible. Democrats, on the other hand, will likely try to slow the process down as much as they can and, citing the Merrick Garland precedent, argue that there should not be a Supreme Court appointment before the midterm elections. Practically speaking, though, there’s little that they are going to be able to do bring that about. When Neil Gorsuch was confirmed to the Supreme Court last year, it happened because Mitch McConnell and the Senate Republicans invoked the so-called ‘nuclear option’ and ended the filibuster for Supreme Court nominations. This, of course, followed in the footsteps of Harry Reid and Senate Democrats who had ended the filibuster for lower-level Federal Judges and Executive Branch appointments in November 2013. That means that Senate Republicans only need a bare majority to confirm a nominee and, barring an unlikely defection by one of the members of the Senate Republican Caucus, whoever the President nominates will be confirmed in the end.
Nonetheless, this is going to be the most politically contentious Supreme Court nominations since the Bork and Thomas nominations. Most of it will just be fireworks, though, because there’s very little the Democrats can do to stop this coming nomination.
Update: James Joyner comments on the Merrick Garland precedent and the Kennedy retirement. No doubt Democrats will point out the hypocrisy of the Republicans moving forward on a nomination four months before the midterms and that may resonate well politically for them. Additionally, their political base will demand that they try to do something to slow the confirmation process down but they reality is that there is next to nothing that they can do.
1) A new justice will be seated before the elections.
2) Roe is toast.
3) Jill Stein will be dragged out of an Organic grocery co-op and torn apart by an angry mob.
(Okay that last one’s just a happy daydream)
So Bernie Saunders supporters wanted change now, directly, and not slow incremental change or the status quo. Just listen to how happy they all are about Ocasio-Cortez having defeated Crowley…
There will be no liberal change with a 5-4 Supreme Court, quite the opposite. Maybe one day they will finally understand that too. And then what are they going to do, picket the Supreme Court?
Will be after elections and should be Merrick Garland
So is the previous post going to be remembered as Doug’s “Dewey Defeats Truman”? =)
Guess the U.S. is going to have to learn history the hard way. We’ve got the pro-business, pro-gerrymandering already; now we’re probably going to see enshrinement of other conservative areas as well. Abortion? If Roe vs. Wade gets overturned, the question goes back to the individual states. I think it would be difficult to get rid of SSM because it would require invalidating a whole bunch of existing marriages. I’m more worried about the anti-union/pro-corporate actions we’re probably going to see. Oh well. If this is what the bulk of the US wants, this is what the bulk of the US will get. I expect to see fewer and fewer immigrants and a drop in US science and technology. Oh, we’ll still have the bombs and the missiles and the nukes–but we’re already slipping behind in certain areas of S&T and have become non grata to more and more people in the world. Which means the entrepreneurs will go somewhere else….
This is how the US ends
This is how the US ends
This is how the US ends
Not with a bang but a whimper
Planned Parenthood is having going out of business sales, abortions are 50% and you’ll receive a complementary set of coat hangers.
I say a new judge can’t be voted on by the Senate until after the midterm elections, otherwise we don’t know what the people want. Ammirite?
@Jc: After the elections but before the new congress is seated in Jan, or after that too?
I bet it’s before the elections. Mitch McConnell is sewer scum wrapped in human skin.
The Republic is fvcked.
We are going to be living with the results of McConnell’s cynicism, and Comey’s idiocy, for decades.
If you’re a woman, your life just got measurably worse.
(On the upside…if you have stock in the wire-hanger industry…hold onto it.)
If you’re gay, your life just got measurably worse.
If you don’t pretend to be a christian, your life just got measurably worse.
Republican efforts at voter suppression will be far more successful.
If you are against capital punishment…tough. Mass incarceration and solitary confinement will see no resistance.
America just changed, radically. The current SCOTUS is wildly activist. The Post-Kennedy SCOTUS will only be worse.
@PJ: So Bernie Saunders supporters wanted change now
Human beings are endlessly entertaining. No matter how bad things get, there’s always time to blame others for your own failures.
@Daryl and his brother Darryl: Yeah but Hillary used email as casually as her predecessors, so at least we avoided that calamity.
It won’t be Merrick Garland and the nominee will be confirmed before the elections.
As I note in the post, there is pretty much nothing the Democrats can do to stop this nomination from being confirmed.
I suppose so, but like most people, I was expecting that any retirement if it came, would have been announced from the bench.
You live and you learn, I guess.
@Daryl and his brother Darryl:
I’d remind you that it might have been a good idea to nominate someone in 2016 who would have been able to beat Donald Trump, but then I remember that Hillary spent most of the campaign trailing almost EVERYBODY in the polls except Trump and Cruz.
Yep, clearing the decks so you could virtue-signal about electing the first female President is definitely going down as one of the more historic screw ups in U.S. politics.
I know you are a colossal pussy and won’t hang around to respond…But Dennison is President because of Putin and Comey. Period.
@Doug Mataconis: Yes, just wishful thinking. Who will it be though?
Maybe they can reanimate Bork?
@PJ: Zombie Robert Bork would probably be better than whoever Trump decides to inflict upon us.
No, but with McCain out, there’s a lot Jeff Flake can do to stop this nomination from being confirmed.
If Democrats take back control of congress and the WH in 2020, they need to expand the court. Screw this talk about norms, that ship sailed years ago.
Except it isn’t. The only reason we have what we have is because our system fucks the majority out of its proper say.
Watch the upcoming midterms. Democratic candidates will get several million more total votes and maybe–maybe–gain a bare majority in representation.
@Stormy Dragon: Jeff Flake’s going to hold up this SCOTUS seat as surely as OJ is going to find The Real Killer.
It will most likely be one of the younger people on the list that the White House already has of potential nominees. For reference, Gorsuch was just 49 when he was confirmed, although he turned 50 before the just-completed term began. That means that whoever is confirmed will likely be on the court for the next 25 years at least.
As for Bork, I know you’re joking but he died in 2012.
Soon 4 of the 5 conservative judges will have been appointed by Presidents that didn’t win the popular vote, yet they will change the Republic, for the worse, for decades to come.
Perhaps, but there will also be pressure on red state Democrats up for re-election this year like Manchin, Heitkamp, Tester, and others to vote for the nominee.
@grumpy realist: “If this is what the bulk of the US wants, this is what the bulk of the US will get”
What makes you think this is what the bulk of the US wants? The Senate majority represents a vast amount of land but a fraction of the people. The House has a Republican majority because they’ve figured out how to draw district lines so that 49% of the votes gets them 80% of the seats. The “president” lost the popular vote by millions.
We are increasingly ruled by two minorities — old, angry white men in the south and midwest, and billionaires. And we know who has the real power.
J-Toob’s feelin me:
Justice Jeanine Pirro .
@Stormy Dragon: “No, but with McCain out, there’s a lot Jeff Flake can do to stop this nomination from being confirmed.”
There sure is. And he can definitely be counted on to give many disappointed interviews to the press before voting for whoever Trump nominates.
@Daryl and his brother Darryl:
That doesn’t “to own the libs” enough. Justice Roy Moore.
I don’t see how you square “abortion is murder” with “let the states decide.” Could a state choose to not have regular old murder be illegal? Or murder of people under the age of five?
@Daryl and his brother Darryl: Remember this is Trump.
Sadly it is not…like, what, maybe 25% of the nations adults voted for Dennison? Not even the majority of voters voted for him. Republicans are weaponizing every anti-majority tool in the Constitution, in order to destroy the nation.
There isn’t, generally speaking, a federal law against murder, so at present a state could choose to legalize it.
@Daryl and his brother Darryl:
Yes, Judge Jeanine would indeed by Trump’s ideal pick, but somehow I don’t think even he would be able to get away with this. Although he is feeling his oats, now that he thinks he knows how to be president. With Gorsuch, the Federalist Society gave him a list of names, none of whom Trump had ever heard of, and told him which one to pick, and he did. I was a bit surprised by Gorsuch: He’s younger (by far) than Trump, much better-looking, and weighs about a 100 pounds less.
In sum, I’m guessing that the Federalist Society will pick this judge, again. But they may run into some resistance, unless Trump is distracted by some shiny new toy–such as a Commander-in-Chief of the Space Force uniform, specially tailored to conceal Trump’s gut.
I picked a really bad time to start watching A Handmaid’s Tale.
Who believes goppers care about the babies? It is all such transparent bullshit. If they actually cared about children and families they wouldn’t be poisoning the land, sea, and air for the benefit of their “base”. If they cared about babies, they wouldn’t cut SNAP benefits and penalize working mothers. And they sure as hell would not rip kids from their parents and put them in cages!
They can call themselves Christian, but, I doubt Jesus or an”all-knowing” God are buying it.
“Abortion is murder” is just virtue signalling. It’s parading how holier than thou one is. They don’t actually believe it, because premeditated murder is a crime punishable by decades in max-sec prison or execution, and they always weasel out of that part when you put the question to them. If they believed it they’d be fine with arresting tens of millions of american women. What’d that Trumper say here yesterday? “Do the crime do the time.”
@Daryl and his brother Darryl:
All of those issues can be addressed by winning state legislature or Congress itself. SCOTUS can not pass laws on its own. And very few cases make it all the way up. Despite GOP efforts, they haven’t really addressed Roe in 25 years. It may be five years or ten years or never before they take case on any of those issues and a lot can happen in the meantime.
So … maybe we save the panic for when there’s something to panic about? No? OK, then.
Next Supreme Court Justice: Ammon Bundy.
@Daryl and his brother Darryl:
There’s a part of me that would like to see him nominate Piro just to get her awfulness out in the open. But I’m terrified she’d get through. Hopefully, he’ll just do what he did last time: outsource to the Federalist Society.
The same way a pharmacist thinks filling a prescription for Misoprostol to a woman suffering a miscarriage is immoral but it totally cool with handing it off to someone else to fill. After all, hiring a hitman isn’t the same as doing the deed yourself, amirite? It’s got to count as less of a sin somehow on the Righteous O’Meter!
Seriously though, if you think it’s murder / killing of an innocent, you cannot be OK with someone else doing it in your stead. Kicking it back to the states is only going to work until they find a way to make it illegal nationwide – there’s absolutely no way the fundies can settle for anything less and still rake in that sweet, sweet fundraiser money!
It will be a woman. After that, who knows.
Roy Moore is 71. Considering the other options, I’d be happy with that pick.
And that’s the ballgame. This made the decision to renounce for us. I fear for what the country is going to become, but I don’t have to be a part of it.
@Daryl and his brother Darryl:
“Soon 4 of the 5 conservative judges will have been appointed by Presidents that didn’t win the popular vote…”
Technically only 3 will have been appointed by Presidents who didn’t win the popular vote.
While Bush didn’t win the popular vote in 2000, he did in 2004. And Alito wasn’t nominated until October 31, 2005.
So Bush has Chief Justice Roberts, Trump has Gorsuch and (almost assuredly) one more.
This is not your father’s Republican Party. I’ll bet you 15-20 states outlaw abortion before Dennison’s term is up.
Yes. Of course voter suppression will be easier now.
Sure…but 43 never should have had a shot at a second term.
Another way to look at it…
Bush was appointed by the SCOTUS. So his two appointments should have astericks.
The Gorsuch appointment was stolen by McConnell.
You could make the argument that three of the five are illegitimate.
Dude…have you seen a picture of the Cabinet?
80% of the top jobs in the Dennison Mob are men…the most male-dominated federal government in 25 years.
@Daryl and his brother Darryl:
Having a bad day, you poor dear?
I’m not a woman.
I’m not a minority.
I’m not gay.
I’m not an immigrant.
So no, I’m not.
The Republic certainly is.
You remind me of the people in Vienna who were cheering as the Nazis came rolling down the Ringstraße.
That you would gloat as your country stands on the precipice of becoming something quite evil says, I think, all that needs to be said about you – about what sort of person you are.
But hey, as long as the people you hate suffer more, eh Herr Oberst?
Physician heal thyself! Don’t forget is that all it took to turn you into Guarneri was one mugging.
Can someone free my comment from moderation?
@teve tory: Shit, my prediction was vindicated in 2 hours.
@grumpy realist: Experience is always the toughest teacher because it always gives the test first and then teaches the lesson.
@Mikey: In honor of Zombie Justice Bork.
That is actually at least somewhat grounded in logic and reality.
All of this “we have to stop this pick at any cost” nonsense is futile, and likely counterproductive.
Of course, your idea hinges on the Democrats doing a lot of winning between now and then … and I’m not so sure the apoplectic response to this event by so many liberals isn’t going to make that task harder, even this November.
The Republicans are laughing (and smiling) their asses off right now …
and the Democratic civil war is about to go “hot” again. (watch)
@Gustopher: A legislative body can write whatever laws the society will approve of. This is why Locke noted that the social contract only yields a morally superior result to the extent that the population is morally superior and advocated (IIRC) for laws that protect the rights of those not in the majority.
Present day: Wouldn’t hold my breath on the morally superior part.
Those 3 will probably be okay no matter how they vote. But McCaskill and Donnelly may be in a tough(er) spot, and I still think they are the most likely Dem Senators to lose in November.
Why not? Then he could sit next to his fellow sex fiend Clarence Thomas…
Yeah, there is no chance of stopping any nominee from getting confirm (unless Trump nominates Rudy or someone like that). In fact, Democrats might be better serve having nominee confirmed quickly so that way it becomes a non-issue during the mid-terms. They have a chance of winning the senate and having this supreme court seat drag out could hurt many vulnerable red-state Democrats.
Democrats are better off playing the long-game. Kennedy retiring sucks, but the real backbreaker would if Ginsburg retires or passes away. That would be a nightmare scenario if Democrats don’t control the senate.
Jeffrey Toobin has stated that within a year and a half abortion will be illegal in ~ 20 states. I have no reason to doubt him. The Democrats will have no way of stopping this and you can bet Mitch McTurtle will steam roll Trumps hyper conservative nominee thru ASAP. The Republican moderates like Flake and Collins will make some concerned noises and tut tut but then will vote affirmative.
The question is what next then? Abortion becomes illegal in Missouri but ask yourself how hard will it be to get RU-486 delivered to your door? How hard will it be to have a video conference with a nurse at Planned Parenthood in NY? Forget the coat hangers, mail delivery of RU-486 will explode.
The government can’t keep drugs out of prison how are they going to stop this?
(And yes, I realize poor uneducated women will bear the brunt of this, as they always do.)
But one thing jumps out at me…federalism will mean something. There will now be very real differences in the laws of various states and there will be consequences that are far reaching that the anti abortion folks have not factored in such as how Big Business reacts. Conventions in a red state? Nope. Factories or high tech moving to your state? Probably a lot harder sell now.
I’ve felt this way ever since the ACA rollout and seeing how red states wouldn’t help their citizens. This is more of the same. They are determined to be poor, sick and backwards. (Farmers voting for Trump? LOL)
Enough. Let them be them and let them live with the consequences.
Therapy might (might, maybe) help you.
I have to admit, when I first heard the news what 1st occurred to me was:
Why is he doing Mitch McConnell, the Republican Party and Donald Trump such a favor? Especially in light of the Garland Travesty?
Perhaps there are personal reasons, or perhaps he sees this as exactly how such business, retirement, is conducted.
Moving far away from persons like yourself was, it turns out, all the help I ever needed.
Enjoy your theocracy.
I guess he cares nothing about one of the Court’s most monumental recent decisions, its majority opinion authored by him…
@Daryl and his brother Darryl:
No one got the majority of votes. Clinton got the plurality of votes, and in most countries that would be enough. However, everyone knew how the rules worked going into it.
The trick isn’t to rehash 2016, its to win back congress and the senate in 2018. And that means talking to people about the future, not the past. My suspicion is that almost no one is going to change their vote (people no more change their political party because of who’s its current leader than change their favorite football team because of who’s the current quarterback – the loyalty is to the team, not the players or even how they play).
But 40% of potential voters didn’t even bother voting. Get 10% of those and we have a land slide.
Of the top 5 being considered for the Supreme Court, two clerked for Scalia and two clerked for Kennedy. BTW: Gorsuch clerked for Kennedy also.
Ooops! Pass the smelling salts. The Democrat Party just fainted. Oh dear!
That’s odd, your irrational tirade was far more expansive. You know what they say, the first step is admitting you have a problem.
BTW – give my regards and thanks to Harry Reid and Hillary Clinton for setting the table here……………
FYI. There is a Democratic Party, but no ‘Democrat Party.’
@al Ameda: I used the word deliberately. There is nothing “democratic” about Democrats; not when you have dingbats like Maxine Waters calling for street fighting.
You’re full of shit…she said no such thing…
@An Interested Party: What makes that an especially stupid lie by John420 is that Waters didn’t call for violence and Trump has, several times, even offering to pay legal bills.
It would be like a Trumper accusing Nancy Pelosi of laundering russian mafia money through her casino. Just a really stupid, obvious lie more properly aimed at a mirror.
Speaking of nothing ‘democratic’ about …
We now have a president who is aligning himself with Russia and North Korea as he throws long-time democratic allies in Europe and Asia under the bus.