John Kozlowicz —

With the retirement of US Supreme Court Justice Anthony Kennedy there is considerable speculation about what effect this will have on future Supreme Court decisions. In the larger area of Supreme Court decisions, 5-4 decisions are the most infrequent ones, with unanimous decisions being the most frequent. The interest in Justice Kennedy comes from his role in close decisions affecting individual rights.

Despite our intense interest today in Justice Kennedy, his appointment to the Supreme Court was almost an accident. When President Ronald Reagan sought to fill the vacancy caused by the departure of Lewis Powell, his first choice of Robert Bork was a disaster. Failing with this nominee, Reagan turned to Douglas Ginsburg. His nomination failed again, as it was discovered that Ginsburg smoked marijuana with students during his tenure as a law professor. Finally, Reagan turned to Anthony Kennedy for a successful appointment to the Court. At the time Kennedy was thought of as a safe and non-controversial appointment to the highest court in the country.

There is always speculation about the impact of the departure of a member of the Supreme Court. Perhaps this one is more intense because of the unique ideological position Justice Kennedy held on the Court. To put it in plain terms, the current Court is composed of four conservative judges and four liberal judges, with Kennedy holding a middle position between these two blocks. There have been many occasions where an attorney arguing before Court would not focus on these separate blocks as their position on the issues was usually well understood. Hence, they would focus their presentation in briefs and oral argument to Justice Kennedy, hoping for a favorable 5-4 vote.

As reported by Paige Winfield Cunningham in the June 28th edition of The Washington Post, over the years Justice Kennedy has more frequently voted with the conservative block than the liberal block, as he’s been part of the majority that has eroded workers rights and voting rights while advancing the priorities of corporations. This has been especially true in the most recent term of the Court in which Kennedy voted with President Donald Trump’s appointee Neil Gorsuch more than with any other justice. It is likely that any appointment by Trump will result in a judge much like Gorsuch, who can be expected to move the Court in a more conservative direction on a host of important economic, political, and social issues.

The liberal block will still remain at four, needing to attract one of the members of the conservative block to their position in order to carry the day on the court. I suspect that there will be a greater focus on Chief Justice John Roberts to join with liberal justices on some issues. These include issues of abortion related to the landmark Roe v. Wade (1973) case. Justice Kennedy cast the deciding vote in Planned Parenthood v. Casey (1992), which left Wade largely in tact. Other issues where Kennedy provided the deciding vote include gay rights in Lawrence v. Texas (2003), which overruled Bowers v. Hardwick (1986), and Obergefell v. Hodges (2015), which established a right to gay marriages.

Kennedy’s position as a deciding judge was also apparent in other kinds of issues. Just recently, in South Dakota v. Wayfair, he voted to allow States the right to collect taxes on online purchases.

Yes, Justice Kennedy had a major role with his casting a 5-4 vote in issues protecting individual rights. However, those of us concerned with individual rights cannot relax. Kennedy’s replacement might well reverse many of these cases with a similar 5-4 vote.

This is where the voice and vote of Justice Roberts may well have an influence and impact similar to that of Justice Kennedy. What we have seen in Roberts is an unwillingness to reverse the Court’s ruling from previous decisions. Thus, it may be that the legacy of Kennedy will continue not, because the future Court majority shares a belief in individual rights in areas such as gay rights or a woman’s right to abortion. The key to the preservation of such right’s will be Roberts adherence to precedent or stare decisis.

As the implications of Justice Kennedy’s retirement will be debated and remain a highly important issue, the more significant departure will be the next one. If one of the members of the liberal block such as Justice Ruth Ginsburg departs before the 2020 election, then President Trump will be able to establish a conservative majority on the court. Otherwise the 2020 election will have a focus on who the winner of the presidential election will appoint to the Court. Given that the conservative members of the Court are a younger group, with perhaps the exception of Clarence Thomas, who is 70 years old, the 2020 and 2024 elections will be very important to individual rights in the United States.