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Justice Kennedy Announces Retirement, Setting Stage for Nomination Battle

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Justice Anthony Kennedy. Credit: Diego M. Radzinschi/NLJ

Justice Anthony Kennedy, who has occupied the powerful center of an ideologically divided U.S. Supreme Court for more than a decade, announced on Wednesday he will retire, giving President Donald Trump the opportunity to cement a conservative majority on the court for years to come.

Kennedy’s announcement came Wednesday afternoon after the court had recessed for the summer. In a letter to Trump, he said his retirement was effective July 31 and he would then assume senior status.

“For a member of the legal profession it is the highest of honors to serve on this court,” Kennedy, 81, wrote in the letter, addressed to “My dear Mr. President.” “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.”

In a statement released by the court’s public information office, Kennedy said:  “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.” He added that while his family was willing for him to continue to serve, his decision to step aside was based on his deep desire to spend more time with them. He said, too, that admiration for his colleagues on the court means that he will “retain warm ties with each of them in the years to come.”

Filling Kennedy’s seat likely will mobilize an enormous political battle not experienced since the Supreme Court nomination and defeat of Judge Robert Bork in 1987, a defeat that eventually led to Kennedy’s nomination. The legal and political stakes are significant because Kennedy’s vote has been central to the outcomes of heated challenges involving abortion, affirmative action, voting rights, gay and lesbian equality, the death penalty and religion.

The battle over replacing Kennedy, who turns 82 next month, will play out over the summer months and, almost assuredly, become a key part of the November midterm elections. Democratic advocates in recent months had begun ramping up their focus on making the judiciary a primary focus in the political realm.

Kennedy’s wife was at the Supreme Court on Wednesday morning, the last day of the justices’ term, and his retirement announcement was made public in the afternoon.

Trump’s list of would-be Supreme Court candidates, which he began to craft while he was a candidate, include Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit; Diane Sykes of the Seventh Circuit; William Pryor of the Eleventh Circuit; and U.S. Sen. Mike Lee, R-Utah. Conservatives have salivated at the thought of replacing Kennedy with a stronger conservative, solidifying the Roberts bench’s rightward leanings.

Kennedy became the so-called swing vote on the Roberts court after the retirement of Justice Sandra Day O’Connor in 2006. A conservative with a strong libertarian streak, he has been the critical fifth vote in the few, but significant victories won by the court’s liberal wing that includes justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. This term, however, Kennedy did not join his liberal colleagues in more than a dozen 5-4 ruling.

Rumors of Kennedy’s possible retirement have floated for months, and, earlier, almost immediately after the U.S. Senate confirmation of Trump’s first high court nominee, Justice Neil Gorsuch, in April 2017.

Some politicians and others suggested that because Trump picked Gorsuch, and Gorsuch had clerked for Kennedy, the justice should feel “comfortable” leaving his legacy in the hands of Trump. There is little evidence, however, that Gorsuch shares Kennedy’s views on the issues in which he has led a divided high court.

Kennedy was President Ronald Reagan’s third choice to replace Justice Lewis Powell Jr., who retired in June 1987. After the Senate defeated the Bork nomination in October of that year, Reagan tapped Judge Douglas Ginsburg of the U.S. Court of Appeals for the D.C. Circuit, but Ginsburg withdrew his name in November after admitting to using marijuana. Four days later, Reagan turned to Kennedy who at the time had been sitting on the Ninth Circuit since 1975.

In a 2005 interview with the Academy of Achievement, Kennedy was asked why he thought he was chosen for the Supreme Court. He replied:

“I like to think that those who were interested in my appointment thought that I was devoted to the law, and that I would be fair. That’s all that I ever ask of myself. That’s all I ever try to hold myself out to be.”

Kennedy sailed through the confirmation process in three days and was unanimously confirmed, 97-0, on Feb. 3, 1988. He is the longest-serving justice on the Roberts court.

Kennedy’s legacy

Animating much of Kennedy’s jurisprudence is his strong belief in liberty protected by the Fourteenth Amendment’s due process clause and his concern for the dignity of the individual.

That aspect of his jurisprudence is especially evident in his majority opinions advancing the rights of gays and lesbians: Romer v. Evans (1996), which struck down a Colorado constitutional amendment denying homosexuals the right to bring certain discrimination claims; Lawrence v. Texas (2003), invalidating criminal laws against sodomy; United States v. Windsor (2013), striking down the definition of marriage as between a man and a woman in the federal Defense of Marriage Act, and the landmark Obergefell v. Hodges (2015), recognizing the marriage rights of same-sex couples.

After the Windsor decision, Cornell Law School professor Michael Dorf, a former Kennedy clerk, proclaimed that the justice would go down in history as “the first gay justice,” in the same sense that Bill Clinton was labeled “the first black president.”

This term, Kennedy was the majority author in the Masterpiece Cakeshop case, where the court, divided, ruled in favor of a Colorado baker who refused on religious grounds to make a wedding cake for a gay couple. The justices concluded a Colorado civil rights commission’s cease-and-desist order violated the baker’s religious freedom rights. The court did not take up the First Amendment free speech part of the case, leaving that thorny issue for another day.

“The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market,” Kennedy wrote in an opinion that seemed aimed at preserving his legacy as both a First Amendment and gay rights champion.

Kennedy once said the easiest cases were the technical ones, those that required him to apply the tools he learned in law school: how to read a statute, how to apply the rules of evidence. The most difficult ones, he added, involve “defining the components of human liberty.” And “sometimes your own values and your own morals really would disapprove of the conduct that you’re ratifying, but you do so because there’s an area of morality,” he explained. “But, morality really should have an underpinning of rational choice, and each citizen must make a rational choice to determine what is good and what is evil, and those are hard.”

He has been closest to a First Amendment absolutist since Justice Hugo Black and he wrote the majority opinion in the still-controversial and much-criticized Citizens United v. Federal Election Commission (2010), which eliminated the restriction on independent campaign expenditures by corporations and unions.

Kennedy has had a mixed record on abortion, approving certain restrictions but, in 1992, playing a key role, along with O’Connor and Justice David Souter, in reaffirming the court’s landmark 1973 abortion decision, Roe v. Wade, in Planned Parenthood of S.E. Pennsylvania v. Casey.

More recently, he has voted to strike down state regulations restricting the operation of abortion clinics and, for the first time, to uphold affirmative action in a case involving the admissions policy of the University of Texas.

Although a “swing vote” like O’Connor, Kennedy never swung as often or as far as she did. He has been more of an “accommodationist” in government and religion cases and more hostile to campaign finance restrictions.

In recent years, Kennedy has spoken publicly against mandatory minimum sentences and has written in opinions about his concerns with the use of solitary confinement in prisons. He also has led the court in prohibiting the death penalty for juveniles.

Kennedy’s shifts to the left have triggered sharp criticism from conservative groups, at least one of which advertised him, Souter and Chief Justice John Roberts Jr. as “No More Mistakes” in a 2016 election year ad. But he has generally been a reliable conservative during his tenure on the high court.

His writing style also has garnered criticism and ridicule for its use of lofty phrases and meandering sentences. The late Justice Antonin Scalia, in his dissent in the same-sex marriage case, wrote of Kennedy’s majority opinion, “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

Regardless of his critics, court scholars and others observed repeatedly during his time on the Supreme Court: “It’s Justice Kennedy’s world and we just live in it.”

Kennedy married Mary Davis in 1963. They have three children.

When asked in 2005 how he would like to be remembered, Kennedy said: “Somebody who’s decent, and honest, and fair, and who’s absolutely committed to the proposition that freedom is America’s gift to the rest of the world.”