Manhattan Institute

A Supreme Opportunity

The retirement of Justice Kennedy gives conservatives the chance to mold the High Court for decades to come.

For conservatives, the retirement of Anthony Kennedy, the Supreme Court’s longest-serving justice, offers an opportunity not seen in generations. If President Trump nominates, and the Senate confirms, a principled textualist and originalist—as he did with Justice Neil Gorsuch, a home-run appointment—the Supreme Court will have a solidly conservative majority for the foreseeable future.

Approaching his 82nd birthday, Kennedy has served on the Court more than 30 years—one of only 15 justices to reach that milestone. He has left his mark in many ways, in no small part because he has served as a “swing” justice between the Court’s conservative and liberal factions for much of his career, essentially holding the fate of the nation’s highest law in his hands.

Conservatives upset with certain results at the Court tend to focus on those areas where Kennedy leaned left—which were often civil rights cases involving groups traditionally facing societal discrimination. Kennedy will probably be best remembered for authoring each of the Court’s major opinions expanding constitutional rights for gay and lesbian Americans (Romer v. Evans (1996), Lawrence v. Texas (2003), United States v. Windsor (2013), and Obergefell v. Hodges (2015)). In Planned Parenthood v. Casey (1992), Kennedy also teamed with fellow GOP-appointed justices Sandra Day O’Connor and David Souter to write a joint opinion that preserved the basic abortion-rights holding of Roe v. Wade (1973). And he ultimately wrote the opinion that preserved much of higher education’s race-based affirmative-action apparatus (Fisher v. Texas, 2016)—even though he had argued against such programs for most of his judicial career, including in his withering dissent in Grutter v. Bollinger (2003).

But it would be a mistake to focus on these civil-rights decisions to the exclusion of Kennedy’s broader, and fundamentally conservative, jurisprudence. Along with his fellow Reagan-appointed Westerners Sandra Day O’Connor and William Rehnquist (named chief justice by Reagan), he was a fairly reliable vote for constitutional federalism, prodding the Court back toward the Founders’ structural limits on Congress. Kennedy, unlike Chief Justice John Roberts, was ready to strike down Obamacare’s individual mandate on federalist grounds in NFIB v. Sebelius (2011).

Far more so than Rehnquist and O’Connor, Kennedy had an expansive view of the First Amendment. In his first full term on the Court, Kennedy sided with the Court’s liberals (and Justice Antonin Scalia) in a controversial decision holding that burning an American flag is protected speech (Texas v. Johnson,1989); much later in his tenure, he wrote for the Court’s conservatives in another controversial decision holding that campaign contributions, even by corporations, are likewise protected speech (Citizens United v. FEC, 2010). So, too, did Kennedy side with Court conservatives in upholding the Second Amendment right to bear arms (District of Columbia v. Heller, 2008, and McDonald v. Chicago, 2010).

Thus, it would be wrong to overread the short-term impact on Supreme Court jurisprudence from replacing Kennedy with a justice more like Gorsuch; Kennedy was hardly Ruth Bader Ginsburg. (Though university affirmative-action officers and NARAL executives are—justifiably—concerned.) That doesn’t mean that the occasion isn’t momentous; Supreme Court appointments are for life, so a new justice who approached Kennedy’s long tenure would affect the future of American law for many years. Confirming a Gorsuch-type jurist to fill Kennedy’s seat would leave the Court with a more solidly conservative majority than at any point since early in FDR’s second term.

Kennedy’s announcement comes at a politically fractured time. Senate Democrats, stung by the Republican majority’s decision not to act on President Obama’s nomination of Merrick Garland to the Court in 2016, have vowed to do all they can to block consideration of Kennedy’s replacement until after this fall’s Congressional election. The Left’s inevitable howling over Kennedy’s replacement has a certain historical symmetry; Kennedy himself owed his seat on the Court to the first major modern battle in the judicial-confirmation wars—when Senate Democrats rejected Reagan’s first choice for the seat, Robert Bork, in 1987. Of course, today—as in 2016, but unlike in 1987—the Republicans hold the Senate majority. That means that they can act to fill this vacancy now, if they maintain their resolve. Senate Majority Leader Mitch McConnell, who ably organized the opposition to Garland that led to the successful nomination of Gorsuch, has promised a quick vote on Kennedy’s successor.

So let’s thank Kennedy for a lifetime of honorable public service in the law. And let’s hope that President Trump quickly advances a qualified nominee in the Gorsuch mold; and that McConnell makes good on his promise to move forward expeditiously with the confirmation process. The stakes are high.

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