Rumors have been flying around Washington that Justice Anthony
Kennedy will announce his retirement from the Supreme Court shortly after the
court’s current term ends in late June. Whether he will or won’t remains to be
seen. But it would be no great surprise if he does.
For one thing, Kennedy turns 82 in July, making him the second
oldest member of the court after Justice Ruth Bader Ginsburg, who’s 85. Kennedy
has served on the court since 1988, and in recent years has had the
satisfaction of being its swing voter, exercising the power to determine the
outcome in numerous closely divided cases.
If Kennedy does retire, there’s sure to be a protracted,
unusually ugly struggle in the Senate over confirming a successor. President
Trump is committed to naming a pro-life justice, as he did last year with
Justice Neil Gorsuch. Then it will be up to Senate Majority Leader Mitch
McConnell to do all he can to get the successor confirmed before the November
elections — that is, while Senate Republicans are still sure of a slim Senate
majority.
By the same token, it will be up to Minority Leader Charles
Schumer and his fellow Democrats to work to prevent a confirmation vote before
the election. And then — who knows? If the Democrats are in charge in the
post-election Senate, it will be payback time for the Merrick Garland episode,
which saw the confirmation of Barack Obama’s last Supreme Court pick blocked by
McConnell and the Republicans by the simple device of refusing to consider it.
Getting back to Kennedy, he is commonly described in the media as
a “conservative.” No doubt that is accurate enough on some matters, but where
the social issues are concerned, Kennedy, a Catholic, has been anything but
conservative, instead playing a key role in defending legalized abortion and
conferring constitutional status on same-sex marriage.
In 1992, in a case called Planned
Parenthood v. Casey, Kennedy, joined by Justices Sandra Day O’Connor and
David Souter, delivered a plurality opinion that settled the question in favor
of abortion. It contains a passage in Kennedy’s easily recognized
philosopher-king style situating “at the heart of liberty … the right to define
one’s own concept of existence, of meaning, of the universe, and of the mystery
of human life” — words that earned Kennedy’s text recognition in some quarters
as the “Ah, Sweet Mystery of Life” opinion.
In 2015, with authorial juices flowing again, Kennedy wrote the
majority opinion for a sharply divided court in Obergefell
v. Hodges, the case which discovered a previously unknown constitutional
right to same-sex marriage. Until then the fight over this issue had gone on
largely in state legislatures. Kennedy and the court’s four liberals removed
the question from the hands of elected representatives of the people and
imposed their answer on the nation as a whole.
Writing in dissent, Justice Samuel Alito said Obergefell would
foster the “marginalization” of people with traditional views on marriage.
“Recalling the harsh treatment of gays and lesbians in the past,” Alito wrote,
“some may think that turn-about is fair play. But if that sentiment prevails,
the nation will experience bitter and lasting wounds.” Recent moves to penalize
those who oppose same-sex marriage on conscience grounds illustrate the truth
of that.
Kennedy’s opinions in Planned Parenthood and
Obergefell were expressions of radical
libertarianism grounded in an individualistic philosophy of life and law.
Whether he steps down now or later, social conservatives will pray for a
successor in a very different mold.
Shaw is a freelance writer from Washington and author of American Church: The
Remarkable Rise, Meteoric Fall, and Uncertain Future of Catholicism in America.