Justice Anthony Kennedy’s retirement will let President Trump drastically reshape the Supreme Court, and the absence of his crucial swing vote may usher in major changes in the legal landscape on a number of key issues.
Trump has already made it clear that he will pick a Kennedy replacement from a list of 25 potential nominees released by the White House last year. It’s highly unlikely that Kennedy’s successor will be in his tradition of a more moderate, center-right influence on the court’s conservative wing. Rather, it seems more probable that Trump — who will only need Republican votes to get his nominee confirmed in the Senate — will pick a judge in the mold of Neil Gorsuch, his first Supreme Court pick who has emerged as far-right voice on the court.
What does this shift mean for the major questions that make their way to the Supreme Court’s doorstep? A look at the issues where Kennedy wielded major influence:
This is the area of law that could be most dramatically remade due to Kennedy’s departure. Kennedy signed on to a number of decisions upholding Roe v. Wade, which said abortion was a constitutional right. Most recently, he voted with the court’s liberals to block states from imposing onerous and unnecessary regulations on abortion clinics which seemed geared at shutting those clinics down.
If Roe v. Wade is not overturned outright, expect it to become much easier for states to impose extreme restrictions on access to abortion. If Roe v. Wade is overturned, then it’s only matter of time that a large swath of states ban the practice.
Remaking this area of jurisprudence is a top priority for conservative activists, many of whom have the ear of the President has he selects his nominee. Trump himself promised on the campaign trail that he would appoint “pro-life” justices.
Justice Anthony Kennedy’s majority decision in Obergefell v. Hodges, the case that legalized same-sex marriage nationwide, was perhaps his best known opinion, and he joined the liberals in previous key decisions that advanced LGBT equality.
Even if a post-Kennedy court doesn’t overturn Obergefell, there are other ways it can turn back the clock on LGBT rights. Though Kennedy declined to reject this term outright a baker’s argument that he can discriminate against gay wedding cake seekers, the decision he and six other justices joined was only narrowly in the baker’s favor and did not make a sweeping judgment on whether business are allowed to deny LGBT people services.
The strategy to roll back gay rights has already began to look like the tactics of the anti-abortion movement, with social conservatives employed a “death by a 1,000 cuts” approach of passing state laws allowing certain forms of discrimination against LGBT people. Kennedy’s successor is less likely than him to get in their way.
Separation of Church and State
Kennedy has swung between the liberals and the conservatives when it’s come to cases dealing with the government and religion. He’s provided key votes in decisions limiting school prayer, while siding with religious institutions in other cases involving their relationship with the government.
His replacement may be even less likely to rule in favor of keeping church and state separate, giving religious conservatives a more reliable vote on the court. And they might get their first post-Kennedy victory very soon, as there is a major case that court is considering taking up having to do with legislative prayer.
Prisoner Rights And Criminal Justice
Kennedy had become a voice-to-listen-for on prisoners’ rights, even if he had not be willing to join the liberals who most recently sought to re-examine how states implemented the death penalty. Kennedy wrote an 2008 opinion declaring unconstitutional the use of the death penalty for child rapists not also convicted of murder, and also wrote a 2005 opinion outlawing the use of the death penalty on juveniles.
Additionally, he wrote a 2015 concurrence denouncing solitary confinement, and also provided the pivotal votes in cases having do to with California’s overcrowded prison system that released thousands of prisoners.
It’s not a given that his successor will be opposed to reforms, however incremental, to the criminal justice system; the late Justice Antonin Scalia, for instance, sided at times with criminal defendants in major cases.
But it’s just as likely that Trump nominates someone more aligned with the other conservatives on criminal justice issues.
Voting rights advocates’ hopes that they could, in the near-future, secure a fifth vote to rein in extreme partisan gerrymandering died on Wednesday with Kennedy’s retirement announcement. For years, anti-gerrymandering advocates have sought to bring Kennedy a case that could convince him to join the liberals, after he wrote a 2004 concurrence hinting that, under specific circumstances, he could be comfortable imposing some limits on the practice.
While their attempt this term fell short, when the case was punted on a technicality, a concurrence from Justice Elena Kagan may have provided a path to attracting Kennedy’s vote. Kennedy, on Wednesday, decided not to stick around to let them try.