The United States Supreme Court is set for a dramatic shakeup after Justice Anthony Kennedy announced his retirement from the bench overnight. Justice Kennedy turns 82 next month and was nominated by President Ronald Reagan in 1987 and confirmed by the Senate in 1988. The reason why his retirement is so significant is that although he was nominated by a conservative Republican he was known as the swing Justice in contentious Supreme Court decisions.
The Supreme Court like most nations’ highest court is responsible for interpreting the United States’ Constitution and its subsequent amendments that make up the Bill of Rights. Despite the Bill of Rights being enacted in the 18th century the Supreme Court interprets it to decide modern social and cultural issues. There are nine Justices on the Supreme Court who once confirmed by the Senate sit for life or until they retire. The Court for many years had been divided between four conservative Justices and four liberal/progressive Justices.
Anthony Kennedy’s swing vote resulted in the United States legalising homosexuality and later same-sex marriage, striking down state laws restricting abortion and limiting capital punishment to those only of sound mind and committing murder. However, he has been in favour of upholding the Second Amendment through overturning the ban on handguns in the District of Columbia, allowing the creation of Super PACs for election campaigning and most recently upheld Trump’s Muslim nations travel ban.
With a Republican in Donald Trump in the White House and the Republicans having a majority in the Senate it is likely that Kennedy will be replaced by a Justice who favours a more conservative interpretation of the Constitution. President Trump in 2017 had nominated Neil Gorsuch who was confirmed by the Senate to replace conservative Justice Antonin Scalia who had died in 2016. The Republican-controlled Senate successfully held out confirming a replacement for Scalia in the final year of Obama’s presidency who nominated Merrick Garland.
Gorsich is considered a proponent of an originalist and textualist interpretation of the Constitution meaning that it should be interpreted as perceived at the time of enactment. Gorsich’s appointment was supported by both Constitutional conservatives and libertarians. It is possible that a replacement for Kennedy will come from the same short-list of judicial officers that Gorish came from which was compiled for President Trump by the conservative-libertarian organisations the Federalist Society and the Heritage Foundation.
The announcement of Kennedy’s retirement has resulted in alarm from progressives groups who fear a rollback in minority rights. Michael Keegan from People for the American Way stated “Justice Kennedy played a historic role in vindicating the constitutional right of same-sex couples to be treated the same as anyone else” warning that “His retirement means both marriage equality and the right to abortion in the United States, as well as key civil rights rulings, are in grave danger. Donald Trump has made clear that, left unchecked, he’ll appoint a Supreme Court Justice who wouldn’t hesitate to toss aside precedent to enact a dangerous and extreme agenda”.
Progressives are probably also alarmed by the fact that one of the court’s most sympathetic Justices to them Ruth Bader Ginsburg is 85 and with Trump still in office for at least another two years the Supreme Court could possibly be 6-3 in the Conservatives favour without it being reshaped for another generation. Conservatives, on the other hand, are continuing to breathe a sigh of relief that this change in the Supreme Court is occurring under a Trump Presidency as the First and Second Amendment which has been under assault from the left will continue to be upheld by the nation’s highest court.