Supreme Court Justice Anthony Kennedy’s retirement announcement is sure to spell change in the highest court in the land.
In recent years, Justice Kennedy has been the noted “swing vote” on the court, making him one of the most powerful people in America.
Many of the court’s major decisions have had the four conservative justices – John Roberts, Clarence Thomas, Samuel Alito and Neil Gorsuch – and, before Gorsuch, his conservative predecessor Antonin Scalia, who died in 2016. The four more liberal justices – Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan – aligned on the left, leaving the generally moderate Justice Kennedy as the swing vote in what has often been a court deciding many of its cases by 5-4 votes. And Justice Kennedy has often served as the tie-breaker.
Now that he has announced that he is retiring, conservatives are turning cartwheels over the chance to have President Trump appoint a staunch conservative in his place so the court might have free reign to tip the scales firmly to the right for years in the future.
Justice Kennedy was appointed to the Supreme Court 30 years ago by President Ronald Reagan. He has been known not for his rigidity of ideology but for his personal conscience in deciding each issue as he sees appropriate.
He has signed off on decisions recognizing the right to abortion, and also on decisions that restrict that right in some instances, but making substantially clear that he is not a vote to overrule the right to abortion first recognized in Roe v. Wade entirely.
He has aligned with the left to strike down laws criminalizing homosexual activity, and he authored the landmark majority opinion that established that same sex couples have the constitutional right to marry.
He has aligned with the right in the two major gun rights decisions in the last decade, which held that there is a right under the Second Amendment for individuals to own handguns for personal protection, striking down laws to the contrary.
On capital punishment, he has leaned to the left, joining liberals in several decisions that restrict the death penalty in certain cases, such as the execution of the mentally ill and those under age 18 at the time of their crimes, and for crimes where the loss a human life did not result.
He joined with conservatives, and even wrote the majority opinion in the landmark Citizens United case, which struck down certain well-entrenched restrictions on campaign spending by various types of organizations, on First Amendment grounds.
He voted that flag burning is protected by the First Amendment; supported decisions restricting affirmative action; wrote and favored rulings that limited Fourth Amendment protection from unreasonable searches and favored law enforcement; wrote the majority opinion in a case that held that persons held as enemy combatants at Guantanamo Bay were entitled to the constitutional right of habeas corpus review of their detention; and has voted to favor commercial and property rights and interests over ecological concerns.
His independence and his lack of adherence to and membership in either of the four-person teams on the Supreme Court have made him, in my opinion, a very admirable figure in the course of American history; and a very powerful one.
And now that he is retiring, the balance of power that put him in that position, and which served to ameliorate the wholesale domination on the part of one side or the other, is likely to change.
Ken Garten is a Blue Springs attorney. Email him at firstname.lastname@example.org