Justice Anthony Kennedy of the United States Supreme Court announced this week that he would be stepping down from active service on the nation’s highest court effective July 31, 2018. The decision instantly sparked a discussion across the United States of the implications of Justice Kennedy’s retirement and the fate of one of our most powerful institutions. This widespread attention is well-deserved, as the new vacancy on the Court, and who will fill it, will shape jurisprudence for years to come.
While the deliberation over the replacement for Justice Kennedy is sure to be contentious, the most instant ramification of his retirement is the composition of the Court in his absence. Justice Kennedy has been a swing vote in many of the Court’s crucial decisions over the past several years, joining the majority in rulings that legalized same-sex marriage, loosened campaign finance restrictions, and gutted parts of the Voting Rights Act. The liberal wing of the court will be maintained by Justices Breyer, Kagan, Ginsburg, and Sotomayor. The reliably conservative Justices will be Justices Thomas, Alito, and Gorsuch. Interestingly, over the years, Justice Roberts has evolved into more of a swing vote than a safe conservative, and is the Justice most susceptible to change, at least for the time being. Which way Justice Roberts will swing on key issues has already attracted speculation, and his vote could be even more crucial if the ninth seat on the Court remains vacant for an extended period of time. However, Justice Roberts is still more conservative than Justice Kennedy, and there is a high chance that the new eight Justice Court will reach 4-4 splits on many decisions.
While the composition of the Court at a one Justice deficit is the most immediate result of Justice Kennedy’s retirement, the discussion about who President Trump will nominate to replace him has already begun. The President has promised to pick from a list of twenty-five possible conservative choices that he had previously chosen as potential nominees for the late Justice Scalia’s vacancy. Three early front runners have emerged: Judge Brett Kavanaugh, Judge Thomas Hardiman, and Judge Amy Coney Barrett. Judge Brett Kavanaugh currently serves on the DC Circuit and is a staunch conservative, best-known for his work on two Clinton-era scandals. Judge Thomas Hardiman serves on the Third Circuit Court of Appeals. Judge Hardiman is regarded as a more "unorthodox" candidate; he did not attend an Ivy league law school and has a long history of pro-bono work. He is still, however, very conservative and holds views that are far to the right of the current Supreme Court precedent. Judge Amy Coney Barrett serves on the Seventh Circuit Court of Appeals. At forty-six years old she is the youngest of the three frontrunners, but still holds an impressive conservative track record, even going so far as to say that Roe v. Wade was wrongly decided.
One of the key considerations regarding the new Supreme Court Justice is the confirmation process itself. Senate Majority Leader Mitch McConnell (R-KY) has already promised that the Senate will vote this fall on the new Supreme Court nominee. Thanks to Senator McConnell’s use of the nuclear option to confirm Justice Gorsuch, the Republicans can, and likely will, push through the nominee despite their small majority of fifty-one Senators. Democrats, on the other hand, are demanding that the confirmation process be delayed until after the upcoming midterms. In arguing this point, Senator Chuck Schumer (D-NY) cited Senator McConnell’s successful filibuster of Judge Garland’s confirmation process until after President Trump’s election. However, Republican Senators have already retorted that Senator McConnell’s precedent of delaying confirmation only applies in presidential election years, not in midterm years. It remains to be seen exactly how the confirmation process will play out.
Regardless of who is chosen to replace Justice Kennedy, they will have significantly more conservative views than the retiring Justice. The new balance of the Supreme Court will be 5-4 on most issues, favoring the conservatives as Justice Roberts is more conservative than not. This means that the conservative decisions of the Court are unlikely to be altered. Even though the Court’s principle of stare decisis means that their decisions very rarely overrule precedent, there has already been speculation on where, if at all, the Court will begin to chip away at its own precedent. Because Justice Kennedy was the swing vote on the following key issues, they are most at risk of being overturned: abortion rights, capital punishment and solitary confinement, LGBT rights, and race-based affirmative action. While the new Court might not immediately overturn precedent, it is possible that a series of minor decisions can slowly turn the tide in a particular area of law. For example, the Court ruled against Texas in a case where the state had passed two anti-abortion regulations. If a similar case were to come before a more conservative Court, perhaps the ruling would go the other way. This can create a “snowball effect” of precedent that eventually overturns a key decision, such as Roe v. Wade.
The events surrounding the Supreme Court in the coming months are bound to be interesting and consequential. Already, the political stakes of the midterms have gone up, as conservatives and liberals alike hope to rile up their bases with a Supreme Court nomination on the line. For President Trump, this is likely to be a defining moment in his legacy, and will be a key issue in his upcoming re-election campaign. And for the American people, the latest iteration of our most influential Court will have a profound effect on some of the most crucial aspects of our lives.