The irony of Justice Anthony Kennedy's legacy probably will be that the areas where he made the greatest difference in the law are the ones that are least likely to survive in the new, resolutely conservative Supreme Court poised to emerge under President Donald Trump.
Justice Clarence Thomas is 70; Samuel Alito is 68; John Roberts is 63; Neil Gorsuch is nearly 51. Absent unforeseen circumstances, they and the new nominee will be the majority for the next 10 to 20 years. For conservatives, this is a time to rejoice. For liberals, it is devastating.
Kennedy came on to the court after the Senate rejected the confirmation of a more conservative nominee, Robert Bork. Although overall Kennedy was more likely to side with the conservatives than the liberals in his 30 years on the court, there were many areas where he was notably more liberal than Bork would have been as a justice. It is expected that Kennedy will be replaced by someone who will be more consistently conservative, and these are the very areas where the law is likely to move to the right.
His most notable contribution to the law has been in the area of gay and lesbian rights. Kennedy has written every Supreme Court decision in history advancing rights for gays and lesbians. For example, in 2013, he authored the decision declaring unconstitutional a key provision of the federal Defense of Marriage Act, and in 2015, he wrote the opinion declaring unconstitutional state laws prohibiting same-sex marriage. Both were 5-4 decisions. I am surprised this is regarded as settled law in light of the vehement dissents, especially by Chief Justice John Roberts.
Kennedy was famously the fifth vote in 1992 in Planned Parenthood v. Casey to reaffirm Roe v. Wade. At the time, Bork publicly declared that he would have come out the other way. Two years ago, Kennedy was the fifth vote to strike down a Texas law imposing restrictions on access to abortion. But his replacement likely will join with the four conservative justices -- Roberts, Thomas, Alito and Gorsuch -- and overrule Roe and allow states to prohibit all abortions.
When Kennedy came on the court, he was a strong foe of affirmative action programs. But over time his views changed and two years ago, he cast the decisive vote to uphold a University of Texas affirmative action program and to reaffirm that colleges and universities have a compelling interest in having a diverse student body. The conservatives, especially Roberts, have left no doubt they want to have all forms of affirmative action declared unconstitutional, and replacing Kennedy will give them the fifth vote.
Although this week he voted to uphold Trump's travel ban, in the past he was a key vote in favor of limiting presidential power and protecting the rights of Guantanamo detainees. For example, in 2008, he wrote the majority opinion in a 5-4 decision declaring unconstitutional a federal law that prevented Guantanamo detainees from having access to federal court via habeas corpus. It is likely there now will be five votes to give more deference to the president.
Kennedy joined the liberal justices in 5-4 rulings limiting the death penalty, such as in preventing it from being used for crimes committed by juveniles or by the mentally disabled or for crimes other than homicides. Some even thought he might become a fifth vote to declare the death penalty unconstitutional. Without Kennedy this isn't going to happen, and these limits on capital punishment might be overruled.
Of course, there are the many areas where Kennedy was the fifth vote for a conservative result: in striking down campaign finance laws, in declaring a law violates the Second Amendment and in many cases this term. In these areas, replacing Kennedy with a conservative is likely to change little on the court.
The simple reality is that a conservative court is about to get much more conservative. And it is going to stay that way for a long time.
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