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Supreme Court Justice Anthony Kennedy Retirement Effective July 31st

             6/30/2018

Anthony Kennedy

                                                                                                                                                                                                                                                 

On this past Wednesday, June 27th, Associate Supreme Court Justice Anthony Kennedy announced that he will be retiring from the Supreme Court on July 31st of this year. Kennedy’s replacement will be Trump’s second Supreme Court nomination after confirming Neil Gorsuch last year (for those unaware, it was calculated during the 2016 election that the winner could nominate up to four SCOTUS seats). The vacancy he leaves has already been, and no doubt will continue to be, a source of great contention in the public sphere and a major political consideration for the upcoming midterm elections.

Justice Kennedy graduated from Harvard Law School in 1961 and began practicing law. He then became a constitutional law professor at University of the Pacific, notably helping Ronald Reagan draft a state tax proposal when he was Governor of California. After service with the California Army National Guard, Federal Judicial Board, and Judicial Conference of the United States, he was appointed to the federal Court of Appeals for the Ninth Circuit. He was then unanimously appointed to the US Supreme Court in February of 1988 after being nominated by President Reagan in the November prior. Following the death of Antonin Scalia in 2016, he became the most senior justice.

Kennedy’s tenure at SCOTUS has been interesting in that it has proven difficult to characterize him as being of any one ideology. He respected the precedent of Roe v. Wade and yet supported some restrictions on abortions such as notifying parents of minors (and interestingly, taken the view that the later Planned Parenthood v. Casey actually permits restrictions by the states). He has ruled against gun control such as in DC v. Heller, while also supporting gay rights in a number of cases. He is also a broad supporter of free speech and habeas corpus (lawful detainment by authorities). Though many would characterize him thus as libertarian, he held with the lawfulness of eminent domain (which, for many libertarians, would be grounds for ideological disownment). He once evoked liberal ire by siding with the industry over the environment in Coeur Alaska, Inc. He can best be characterized as a moderate conservative, since of the 16 ideologically-charged cases of his tenure, he sided with conservative ideals 11 times.

It is therefore surprising that, upon Justice Kennedy announcing his retirement, the chatterboxes of the internet rejoiced on the right and mourned on the left. The root of the somewhat hysterical reactions seems to be that, since Kennedy is seen (with debatable accuracy) as a “judicial activist” supporter of abortion and gay rights, his replacement will enable the immediate undoing of any such precedent to outlaw gay marriage and abortion. On the liberal side, this shows their flawed but popular belief that judges (or at least SCOTUS) have lawmaking powers, which is simply not true; they only interpret and clarify the law through the lens of the Constitution, the guiding law of our nation.

As for accusations of judicial activism, Justice Kennedy (who is known to use international law as a supplement for the Constitution when needing clarification) has himself said, “An activist court is a court that makes a decision you don’t like.” This simplification is not always true— we all remember the Hawaiian federal judge who refused to allow a travel ban— but the sentiment holds. Justice Kennedy seems to have been a sincere judge acting to the best of his abilities. Some may not appreciate his internationalism (understandable, given the questionable authority of the United Nations), but he has never seemed to allow globalism to suppress the Bill of Rights. Though Kennedy has served his country well from the bench, it will be an exciting opportunity to watch his successor come forward, as it stands to have serious ramifications for politics and law alike.

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