What Anthony Kennedy’s retirement means for abortion, same-sex marriage, affirmative action and the future of the Supreme Court
(CNN) — The Supreme Court was often called the “Kennedy Court” because Justice Anthony Kennedy cast the deciding vote on so many politically salient cases, especially on abortion and gay rights.
With Kennedy’s upcoming departure, and the likely nomination of a staunch conservative to replace him, questions immediately arise over what would become of his legacy and the law for all Americans.
Will Roe v. Wade be overturned?
Kennedy was the fifth vote (with the four liberal justices) to uphold a woman’s right to abortion. He cast the decisive vote in that 1992 case that affirmed Roe v. Wade, the 1973 landmark that made abortion legal nationwide. In the 1992 ruling, Planned Parenthood of Southeastern Pennsylvania v. Casey, the court said government cannot impose an “undue burden” on women seeking to end a pregnancy before the fetus is viable. More recently, Kennedy was the key vote in 2016 to strike down strict regulations on abortion clinics in Texas.
With Kennedy gone, Roe v. Wade is at risk.
Kennedy’s departure will be taken as an invitation to anti-abortion advocates and conservative states to impose even stricter regulations or make the procedure outright illegal.
It would be a dramatic jolt for the Supreme Court to overturn abortion rights after 45 years. Certainly, conservative Chief Justice John Roberts has supported greater regulation of abortion, yet he has constantly referred to the court’s regard for precedent and fights its image as a political institution.
It is possible a new conservative majority would trim the right to an abortion — for example with more restrictions on physicians, clinics and the timing of a termination – rather than reverse Roe altogether.
What happens to same-sex marriage?
The 2015 gay marriage precedent — another milestone Kennedy opinion in which he sided with the court’s liberals against four conservatives — is more recent than Roe but it may not be as enduringly divisive.
The court this term relied on the Obergefell v. Hodges precedent when it took up a case of a Colorado baker who refused to make a wedding cake for a gay couple. The court, in a 7-2 decision by Kennedy, sided with the baker based on statements disparaging of religion at a Colorado civil rights commission hearing. Kennedy’s fellow conservatives signed his opinion, which was premised on a right to same-sex marriage.
It is likely, however, that the new conservative majority would be defer more to religious interests and permit a broad range of exemptions to laws intended to protect people based on sexual orientation.
Kennedy, who has written every gay rights decision since 1996, leaves behind this caution from the Masterpiece Cake ruling for those who would want religions exemptions that affect gay marriage: They “would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages,’ something that would impose a serious stigma on gay persons.”
Will affirmative action come to an end?
Kennedy has a mixed record on racial remedies. In 2007, he was the fifth vote against Seattle and Louisville public school assignment plans that took students’ race into account for district-wide diversity.
But he broke with his conservative brethren who wanted to shut the door completely on such integration measures. In 2016, Kennedy also was the fifth vote to uphold a University of Texas at Austin affirmative action program that considered students’ race as one of many factors in the admissions decision, again for campus diversity.
But Roberts strongly objects to racial policies, and a case testing university affirmative action at Harvard could soon be working its way to the high court. In the balance would be a 1978 precedent, Regents of the University of California v. Bakke, which first allowed race to be considered in admissions decisions.
Without Kennedy, it could fall and campus affirmative action be prohibited.
Who’s the new swing vote?
If there is one, it’s Chief Justice John Roberts.
Of the four conservatives who Kennedy is leaving behind, Roberts is closest to the left. (Justices Clarence Thomas and Neil Gorsuch are farthest on the right; Samuel Alito falls generally between that pair and Roberts.)
With another appointee in the mold of Gorsuch, Roberts would be pivotal — if he chooses to be more moderate. Yet if he joins with the four liberals, as Kennedy often did, Roberts would likely still lead to a decision with a more conservative bent than Kennedy did.
What about Ruth Bader Ginsburg?
This senior liberal will increasingly be relegated to the dissent.
She and fellow liberals Stephen Breyer, Sonia Sotomayor and Elena Kagan will be fighting the rightward tide even more than they did during the recently completed term. All four took the unusual step of dissenting from the bench at various points, to underscore the dangerous turn they believed the court already was taking.
Just on Wednesday, Kagan declared that the majority was overturning an important 1977 labor case simply “because it wanted to.”
In her dissenting opinion, signed by the three other liberals, she suggested that the conservative majority — even with Kennedy — talks as if it values precedent but does not always deliver.
“There’s no sugarcoating today’s opinion,” she declared. “The majority overthrows a decision entrenched in … this nation’s law.”
Such an assertion takes on greater weight now that so many other decades-old cases may be in the balance.
What happens to the death penalty?
Kennedy was a consistent vote for the death penalty but he favored exemptions, for example for people who were under 18 at the time of the crime.
In 2008 he was the fifth vote — with the four liberals — to strike down a Louisiana law that permitted the death penalty for the rape of a child. (The justices in a 1977 case involving an adult had generally banned the death penalty for the rape.)
Kennedy also separated himself from fellow conservatives on some criminal justice issues, including the use of solitary confinement. In a concurring opinion in the 2015 case of Davis v. Ayala, he encouraged prison officials and policy makers to weigh “the human toll wrought by extended terms of isolation.”