SC Justice Kennedy, who balanced the court and advocated restraint, announces retirement
Justice Anthony Kennedy, the Supreme Court’s de facto “swing vote,” announced his retirement Thursday afternoon, setting off a firestorm in both parties. Republicans for the most part rejoiced at the prospect of a more staunchly conservative appointee by Trump, while Democrats bemoaned a future without the relative balance Kennedy brought to the otherwise 4-4 split in the Court.
The decision was expressed in a concise and formal letter to President Trump, one which Kennedy delivered himself on Thursday morning. The marked lack of flourish and rhetoric reads as especially suited to a judge who was often the only unpredictable, moderate opinion in a divided court. “Please permit me by this letter to express my profound gratitude for having had the privilege to seek in each case how best to know, interpret, and defend the Constitution and the laws that must always conform to its mandates and promises,” he wrote.
Justice Kennedy, who is 81 years old, was appointed by Reagan in 1988. At his Judiciary Hearing, he argued that judges must exhibit “sensitivity and an unyielding insistence on justice.” Indeed, Kennedy’s emphasis on judicial restraint as opposed to judicial activism became a defining characteristic of his tenure on the Supreme Court. In a 1986 address at Stanford, Kennedy said, “The unrestrained exercise of judicial authority ought to be recognized for what it is: the raw exercise of political power.”
True to his word, Kennedy asserted a decidedly moderate approach in his 30 years on the bench. In 1992, he joined the majority opinion in Planned Parenthood v. Casey, which reaffirmed the abortion rights decided in Roe v. Wade while leaving space for later restrictions. In Boy Scouts v. Dale, however, he upheld the right of The Boy Scouts to exclude gay members. And in 2010 he wrote the majority opinion in Citizens United v. FEC, often seen as the case responsible for the spread of super PACs.
The announcement comes on the heels of the Midterm primaries, and Democrats who hit the polls in an effort to prepare their party for victory in November are now faced with a new, in some ways more daunting debacle in the judicial branch. The coming appointment will be overshadowed by the bad blood between the parties that stems from Trump’s first appointment, Justice Neil Gorsuch. Gorsuch occupies the seat of Antonin Scalia, who retired at the end of Obama’s term in office. Republicans in the Senate blocked Obama’s attempted appointment of Merrick Garland, and kept the seat empty until Trump was in the White House.
Democrats, however, will not have the same opportunity, as the threshold for appointing a judge was lowered by Congress from 60 to a 51-vote majority last year. Assuming the new appointment is made before the Midterm elections in November, it seems Democrats have little hope for reprieve. In a press conference Thursday, Trump said the search would indeed “begin immediately.”