Recent rumors that 80-year-old Justice Anthony Kennedy may be plotting his retirement from the Supreme Court have generated speculation and concern in Washington DC – and across the nation. Kennedy, who is considered conservative but also often sides with the liberal justices on the court, has often swayed the court’s decision with his vote. If he were to step down, it would allow President Donald Trump to nominate his replacement. Trump, who has already appointed Justice Neil Gorsuch to the high court, has promised his picks will be staunchly conservative. What could this mean for key issues such as reproductive rights and marriage equality? Here is everything you need to know about the stakes of Kennedy’s decision.
What Are the Chances Justice Kennedy Will Retire Soon?
Justice Kennedy has served on the Supreme Court for nearly 30 years and turns 81 on July 23. Although rumors have been circulating in Washington that he is planning to step down this Summer, it would appear the judge has decided to delay his retirement for at least another term. The Supreme Court ended its term two weeks ago, and no announcement has been made. Still, this does not rule out Kennedy retiring later during Trump’s presidency.
How Would Justice Kennedy’s Retirement Affect the Balance in the Supreme Court?
Justice Kennedy has often been the swing vote on key issues. Although he was appointed by Ronald Reagan, he tends to side with the more liberal judges on important matters. His vote was essential for enabling the national legalization of same-sex marriage in 2015, and he recently sided with a 6-3 majority on restricting the implementation of Trump’s travel ban against several primarily Muslim countries.
On the other hand, Justice Gorsuch – whom Trump nominated earlier this year to replace Justice Antonin Scalia – is a staunch conservative who has sided with the most right-leaning judges on the court with every vote he has taken so far. Because Scalia was himself a conservative, Gorsuch’s appointment has essentially maintained the status quo balance in the Supreme Court. However, a second conservative appointee under Trump would certainly shift the court to the right.
Which Issues Could Be Affected If Kennedy Is Replaced With a Conservative?
Because Kennedy was so instrumental in legalizing same-sex marriage, many are concerned a more conservative Supreme Court could review and attempt to repeal this decision. Such overruling of previous decisions has been an extremely rare occurrence in the past and would also go against public opinion: 64 percent of Americans currently support gay marriage. While the Republican party has proven that it is not afraid to push unpopular ideas, it’s unlikely that even a far-right-leaning Supreme Court would go down such a road.
However, this does not mean that gay rights and other individual rights could not be restricted in different ways. Next term, the court is due to hear and rule on a case touching upon religious freedom and civil rights. The case is an appeal from a Colorado baker who claims he had the right to refuse to create a wedding cake for same-sex couples based on his faith. Should the court rule in favor of the baker – who has lost a previous discrimination lawsuit – it could have wide-ranging consequences on gay rights in that it would effectively allow businesses to discriminate based on sexual orientation.
This same ruling could also potentially open the door to other cases based on religious freedom making it to the Supreme Court. Some hypotheticals: companies claiming the right to deny contraceptive coverage or to choose not to hire women who have had abortions or take the pill. Trump has boasted that, if given the chance, he would appoint pro-life judges who would repeal Roe v. Wade. While that extreme outcome may be unlikely, consider cases like last year’s Whole Woman’s Health v. Hellerstedt, which dealt with restrictions in Texas that held abortion clinics to unreasonable standards, essentially ensuring that women could not access the procedure. The court ruled against the Texas restrictions in a victory for women’s rights. A court with a conservative tilt could very well vote the other way on future cases, eroding reproductive rights and seriously undermining Roe v. Wade.
Finally, the Supreme Court will need to rule on Trump’s travel ban next term, deciding whether the decree to prohibit citizens of six countries with primarily Muslim populations from entering the country will be upheld. It is predicted that the decision will hinge on the votes of Chief Justice John Roberts and Justice Kennedy. While it appears increasingly likely that Kennedy will still be sitting on the Supreme Court for this particular ruling, his absence would heighten the chances of the ban being implemented – highlighting the powerful role he will continue to play on the court until he chooses to step down.