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How Anthony Kennedy's retirement will change the U.S. Supreme Court

Kennedy was the key swing vote over the past 12 years, and his departure means the makeup of the court likely will shift to the political right.

Neil Gorsuch, left, with Supreme Court Justice Anthony

Neil Gorsuch, left, with Supreme Court Justice Anthony Kennedy before taking the judicial oath at the White House on April 10, 2017. Photo Credit: AFP/Getty Images/Brendan Smialowski

With the retirement of Justice Anthony Kennedy, the U.S. Supreme Court’s key swing vote over the past 12 years, the makeup of the court likely will shift to the political right.

After the retirement of Sandra Day O’Connor in 2006, Kennedy became the most closely watched of the nine justices, casting the deciding vote on a string of high-profile cases.

Now, President Donald Trump, a Republican, has the opportunity to appoint Kennedy’s successor and has said he will choose a conservative as early as Monday.

Following is a discussion about the significance of Kennedy’s retirement, and what to expect during the confirmation process for Trump’s new nominee:

Q: Why is Kennedy’s retirement such a big deal?

A: Whether they’re on the left or right, many court observers are saying this could make for landmark shifts on abortion, gay rights and other issues on which Kennedy had sided with the court’s liberal wing. Replacing him with a conservative could tip the balance of the court from slightly right of center to solidly right.

And because Supreme Court appointments are lifetime, a new justice can have long-lasting impacts on the law and society.

“The announcement of Justice Kennedy’s retirement and his replacement by President Trump is going to mean a court that will be very conservative for many, many years,” Erwin Chemerinsky, a University of California at Berkeley law professor, wrote in the Sacramento Bee. “With the new justice, it will be the most conservative court since the mid-1930s.”

Q: Will there be immediate impacts?

A: Many are predicting the shift will embolden people and organizations who lost cases 5-4 on the basis of a Kennedy vote to try again.

“Justice Kennedy was the obstacle to moving further to the right on issues like abortion and affirmative action,” ScotusBlog, a website that tracks the court’s decisions, said. “But just as important, the fact that his vote wasn’t certain dissuaded conservative interest groups and justices from taking up a host of issues. That all changes.”

“We know what we’ve got ahead of us,” Marjorie Dannenfelser, head of Susan B. Anthony List, an anti-abortion group, told The Atlantic magazine when asked about the significance of Kennedy’s replacement. “If this is the Roe vote, then it is the most consequential battle since 1973.”

Q: How quickly does Trump intend to act?

A: He has said he intends to make a selection as soon as Monday. He said he already has interviewed several candidates personally.

Q: Who are the leading contenders?

A: The Trump administration has released a list of more than 20 possible candidates. Among the most talked about are: Raymond Kethledge of Michigan, a federal judge who clerked for Kennedy; Brett Kavanaugh of the D.C. Circuit Court of Appeals and another former Kennedy clerk; Amy Coney Barrett, a member of the Seventh Circuit Court of Appeals; Amul Thapar of the Sixth Circuit; and Thomas Hardiman, who serves alongside Trump’s sister, Maryanne Trump Barry, in the Philadelphia-based 3rd U.S. Circuit Court of Appeals.

Q: Won’t there be a fight in the Senate?

A: Certainly. But Republicans have 51 of the 100 seats and, as they showed during the fight over Trump Supreme Court nominee Neil Gorsuch in 2017, they have no qualms about breaking a Democratic filibuster to force a vote. What GOP leaders would have to worry about is whether some of their more moderate members, such as Sen. Susan Collins (R-Maine) and Sen. Lisa Murkowski (R-Alaska), would balk at a staunchly conservative candidate, especially a strong anti-abortion nominee.

Q: Wait, Republicans who controlled the Senate blocked then-President Barack Obama from filling a Supreme Court vacancy in 2016. Can’t Democrats do the same to Trump?

A: The Republicans’ refused to even hold a confirmation hearing for Obama nominee Merrick Garland. They upended the traditional practice of allowing a president to fill a vacancy if it occurred in his term (there have been some rare exceptions) and effectively turned a Democratic selection (Garland) into a Republican one (Gorsuch).

The rules haven’t changed about Supreme Court nominations, but the politics have hardened.

Senate Majority Leader Mitch McConnell (R-Ky.) said then that any nomination should be put on hold until after the 2016 election. Democratic senators have made the same argument about this year’s vacancy, saying it should wait till after the 2018 midterm congressional elections. McConnell has said no thanks.

Democrats could try delaying tactics, such as not providing the Senate with a quorum to convene a nomination hearing. But practically speaking, their best shot might be in convincing one or two GOP moderates to vote with them if Trump nominates someone they perceive to be extreme.

Q: How long had Kennedy been on the court and what is he known for?

A: Kennedy, 81, was nominated to the Supreme Court in 1988 by then-President Ronald Reagan, and was expected to be a reliable conservative vote. Overall, Kennedy operated as a conservative. But he also served as a swing vote who sided with the court’s liberals on some key issues.

Q: Such as?

A: Kennedy supported gay marriage and abortion rights. He largely supported the death penalty but cast key votes for protections for defendants who had committed crimes when they were under age 8 or who had limited mental capacity. He also denounced solitary prison confinement.

Q: So Kennedy was a liberal?

A: No. Kennedy sided with conservatives on issues including voting rights, gun control and campaign-contribution limits. He was considered a reliable backer of business and corporate interests. He even sided with conservatives in calling “Obamacare” unconstitutional, though in that case he was in the minority.

Whereas some judges are almost completely predictable (Clarence Thomas for the conservatives, Ruth Bader Ginsburg for the liberals), Kennedy often was viewed as unpredictable and someone who could make or break a case.

Q: What are some of his best known decisions?

A: We’re talking about a guy who issued majority opinions in more than 90 cases that were decided by a 5-4 vote, so it’s hard to pick just a few. But here are some of the most widely cited:

  • Planned Parenthood v. Casey, 1992: Upheld Roe v. Wade abortion rights protections.
  • Obergefell v. Hodges, 2015: Legalized same-sex marriage in all 50 states.
  • Citizens United v. Federal Elections Commission, 2010: Eliminated limits on an array of types of campaign spending.
  • District of Columbia v. Heller, 2008: Kennedy agreed with the majority that the Second Amendment gives a person a constitutional right to keep a handgun at home.
  • Bush v. Gore, 2000: Sided with the majority in terminating the Florida recount, awarding the presidency to Republican George W. Bush.

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