What Will Happen After Justice Kennedy's Retirement? Here's What To Read
Supreme Court Associate Justice Anthony Kennedy announced his retirement today, granting President Donald Trump a second chance to leave a lasting mark on the court. Kennedy has long been known as a swing justice — although in his last season he sided with the court's conservative bloc on several high-profile cases — and replacing him with a more consistent conservative could transform American policy and society for decades to come.
What does Kennedy's retirement mean for you? Here's the best analysis and commentary on the post-Kennedy era.
A primary concern for many people is that with Kennedy replaced by a presumably much more conservative justice, the Supreme Court could overturn Roe v. Wade. Rescinding a woman's constitutional right to privacy has been at the top of anti-choice Republicans' agenda for literally decades. What would happen if Trump installed an pro-life judge who subsequently cast a decisive vote on an abortion rights case? The Center for Reproductive Justice has kept an updated database estimating each state's prospects for maintaining the legality of abortion in a post-Roe world. Here's a summary:
[Center for Reproductive Rights]
The highest-alert states are those with "trigger laws" banning abortion that "spring[] into effect the instant or soon after Roe is overturned." Read more about the factors that go into each state's rating and find out how likely legal abortion is to survive in your state after Roe over at the Center for Reproductive Rights.
In addition to reproductive rights, Kennedy's departure bodes ill for criminal justice reform. Vox's Dylan Matthews takes a look at Kennedy's record on prisoner rights, among other issues, and finds that he was the the anti-mass-incarceration movement's best hope for curbing states' harshest treatment of prisoners.
In 2011, Kennedy wrote a 5-4 decision upholding a lower court order that California release tens of thousands of prisoners to reduce overcrowding, which the state itself admitted was unconstitutional. It was, [law professor Jonathan] Simon told me, "the first prisoners' rights decision to come down in favor of the prisoner in a long time. It ended mass incarceration in California." …
Kennedy was also the best hope that opponents of capital punishment have for a ruling against the practice, even though he's often sided with conservatives in some past death penalty cases on the constitutionality of, say, using a particular lethal injection method.
[Vox]
LGBTQ rights are also at stake. Kennedy cast the decisive vote in 2015's Obergefell v. Hodges, which granted gay couples the right to marry in all 50 states, and his departure could leave that decision in jeopardy, as Slate's Mark Joseph Stern explains:
If there is any hope of Obergefell surviving the Trump era, it lies with Roberts, who occasionally places institutional concerns over political and ideological preferences, and might be persuaded to affirm Obergefell to prevent chaos for same-sex couples across the country. Yet toward the start of his acrid Obergefell dissent, Roberts declared: "The majority's decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court's precedent." And at the end, he advised same-sex couples that they should not pretend like they deserved their victory. "Do not celebrate the Constitution," he wrote. "It had nothing to do with it." The man who wrote these words is now gay Americans' last, best hope. His vote may be the only thing that stands in the way of states that wish to nullify all same-sex marriages.
[Slate]
As for the near future, Kennedy's retirement could also certainly have an impact on the midterms elections — and not necessarily in a way that benefits Democrats. The Post's Aaron Blake argues that the Supreme Court vacancy could be the election-year issue that Republicans have been starved for.
Democrats have clearly had the momentum in the 2018 midterms in recent months, and that momentum owed in large part to their superior motivation and enthusiasm.
A Supreme Court payoff for the Republican Party — with hearings and a confirmation likely to come close to Election Day — is the kind of thing that could remind not just GOP members of Congress but also Trump voters that their Trump gambit paid dividends. It also puts serious pressure on the many Democrats seeking reelection in clearly red states, like North Dakota's Heidi Heitkamp, Montana's Jon Tester and Indiana's Joe Donnelly.
We hope it's all worth it for Kennedy!
