Regardless of who President Donald Trump taps to fill the Supreme Court seat left vacant by Justice Anthony Kennedy, the nominee will help solidify a new conservative era in American law.
Kennedy’s retirement at the end of July gives Trump his second opportunity to nominate a justice to the high court. The first time around, in April 2017, the president managed a one-to-one ideological trade: Neil Gorsuch for the court’s late conservative anchor, Antonin Scalia. While Justice Kennedy was no liberal, especially in his final term, replacing him with a judge who's further to the right — like one of Trump’s rumored favorites — could reshape the bench for decades to come.
Trump’s nominee, expected to be announced Monday evening, could especially affect the issues where Kennedy served as the court’s swing vote, like reaffirming abortion rights, expanding gay rights, and limiting the death penalty.
President Trump campaigned on a promise to pick Supreme Court justices who would overturn Roe v. Wade, the landmark 1973 case that established a woman’s constitutional right to abortion.
And two of the supposed top three picks — Amy Coney Barrett and Brett Kavanaugh — fall neatly in line. Earlier this year, Kavanaugh sided with the Trump administration in a circuit court battle over an undocumented teenager’s request for an abortion. And Barrett, a Roman Catholic who believes life begins at conception, has written about the “errors” in Roe.
For his part, Kennedy served as a key vote on critical cases upholding a woman’s constitutional right to choose, including co-authoring a 1992 opinion involving Planned Parenthood that reaffirmed Roe as precedent. And in 2016, Kennedy swung the court in favor of an abortion provider, in a decision that struck down a Texas law for placing restrictions on clinics that weren’t grounded in enough medical fact to justify the resulting limitation on safe abortions.
Since Roe, states have passed 1,214 abortion restrictions — one-third of these just in the last eight years, according to the Guttmacher Institute. These regulations have forced many clinics to close; six states have only one left.
Without Kennedy, anti-abortion lawmakers could try to pass legislation that would trigger a Supreme Court fight. And even if a new conservative majority doesn’t overturn Roe outright, the justices could uphold laws that make abortions functionally impossible for many women.
Justice Kennedy authored several crucial opinions that expanded rights for gay people in America. But a more conservative justice could tip the scales back again, especially since many laws governing hate crimes, adoption, and housing, for example, still don’t include sexual orientation as a protected category.
“They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
In 2003, Kennedy struck down a Texas law criminalizing gay sex. A decade later, he found defining “marriage” as a union of one man and one woman unconstitutional. That decision invalidated the federal Defense of Marriage Act (DOMA), which denied same-sex couples recognition as spouses for the purposes of federal law, including Social Security benefits.
And the crowning glory of Kennedy’s triad came with his 2015 opinion in Obergefell v. Hodges, which legalized gay marriage nationwide.
“Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions,” Kennedy wrote of same-sex couples in that decision. “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
Barrett, on the other hand, added her signature to a 2015 letter that called marriage an “indissoluble commitment of a man and a woman.”
The death penalty
During his time on the bench, Justice Kennedy helped limit the scope of the death penalty. But a new conservative majority could take what constitutes cruel and unusual punishment under the Eighth Amendment in the other direction.
Kennedy cast the critical vote in two important opinions: one made executing juvenile offenders illegal and another ruled the Eighth Amendment doesn’t allow execution as a punishment for raping a child if the rape didn’t, and wasn’t meant to, cause the child’s death. Kennedy also joined an opinion that determined executing mentally disabled criminals is unconstitutional.
A court dominated by five firmly conservative justices likely wouldn’t rule in favor of death row inmates in capital punishment cases, like two coming before the court next term: Madison v. Alabama and Bucklew v. Precythe. Raymond Kethledge, for instance, another one of Trump’s rumored top picks, already declared in a ruling last June that “the Constitution does not guarantee ‘a pain-free execution.’”
President Trump’s Justice Department recently rolled back Obama-era affirmative action policies that asked universities to consider race in campus diversity initiatives.
Kennedy dissented from a 2003 case that upheld similar policies at the University of Michigan Law School. But in that dissent, he wrote that it’s certainly constitutional for race to be a factor “among many others to achieve diversity.”
Then in 2016, Kennedy voted to uphold a University of Texas admissions policy that considered race. In that case, the current conservative anchor of the court Clarence Thomas wrote separately that weighing race in admissions is unconstitutional. “As should be obvious, there is nothing ‘pressing’ or ‘necessary’ about obtaining whatever educational benefits may flow from racial diversity,” he wrote.
A conservative court could follow Thomas’s and Trump’s lead should similar cases come before them. For example, a closely watched suit now pending in federal court alleges that Harvard’s admissions policies unconstitutionally discriminate against Asian-Americans.
Trump’s Environmental Protection Agency has rolled back dozens of regulations, including many now tied up in the lower courts. And if the Senate confirms a new justice by the fall, he or she will quickly have a chance to weigh in on a case that asks about the extent of wildlife habitat protections under the Endangered Species Act.
Kennedy had somewhat of a mixed record on environmental policy, but he did cast the deciding vote in a milestone climate change ruling that instructed the EPA to regulate greenhouse gases as air pollutants. He also joined the majority in a 2014 decision upholding a requirement that asked states to reduce their power plant emissions to protect air quality in downwind states.
That case overturned a lower court ruling, written by none other than Kavanaugh, that found the cross-state air pollution rule to be illegal. He’s a noted critic of clean air and water protections put in place under President Obama.
Cover image: The justices of the U.S. Supreme Court gather for an official group portrait to on June 1, 2017. (AP Photo/J. Scott Applewhite, file)