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A Constitutional Law Expert Breaks Down Justice Kennedy's Retirement Announcement

UNC professor Michael Gerhardt talks with Pacific Standard about the implications of Anthony Kennedy's retirement.
Justice Anthony Kennedy.

Justice Anthony Kennedy.

In a move that guarantees a major political shake-up, Justice Anthony Kennedy announced on Wednesday his retirement from the Supreme Court. Kennedy, the longest-serving member of the court, had long been its centrist swing vote, siding in favor of legalized same-sex marriage and preserving Roe v. Wade, but writing the majority opinion in Citizens United and siding against handgun restrictions in District of Columbia v. Heller.

Now the focus will now turn to Kennedy's successor. President Donald Trump has already promised a speedy nomination process—the second of his presidency, after Neil Gorsuch was confirmed to the Supreme Court last year (to a seat that was vacant only because congressional Republicans refused to confirm President Barack Obama's nominee, Merrick Garland).

Kennedy's retirement puts at serious risk the court's protections for abortion access (Roe V. Wade), and increases the likelihood that the Supreme Court continues to rule against anti-discrimination laws (as it did in the recent decision on Masterpiece Cakeshop v. Colorado Civil Rights Commission). On an even larger scale, a post-Kennedy court could be one that offers little check or balance on conservative presidents.

For more on the implications of Kennedy's retirement, we spoke with Michael Gerhardt, a constitutional law professor at the University of North Carolina–Chapel Hill.


What was your immediate reaction to the Kennedy news?

I'm still digesting. Obviously we all thought this might happen. But this is a very big event for the Supreme Court.

Why might Kennedy feel comfortable retiring now?

That's a good question. I don't know the answer, but I think we have to take him at his word. He said he felt this was the time to step down. I'm going to speculate that, at 82, you tend to slow down. He's somebody who really threw himself into the work; it may just be that he feels he can't keep up the pace.

Some people have speculated that Kennedy felt comfortable with Trump's ability to choose his successor after the president nominated Neil Gorsuch.

I never believed that. I'm not sure what sort of reassurance the appointment of Gorsuch is for Kennedy. Logically, they're not so in tune. This term, the differences [between Gorsuch and Kennedy] may not be as sharply defined as they might be otherwise. There are some issues out there where it's not clear they would have been on the same side—for example, reaffirming Roe v. Wade or Romer v. Evans.

What issues are most vulnerable now?

Where's the boundary on presidential and congressional power? There's a question about how far the free exercise clause might support not complying with various other laws—that's the Masterpiece bakery case. Zoning rights and gerrymandering are other areas. It appeared this term that Gorsuch and Kennedy were on the same side, but how close we can't really tell. And what difference Kennedy's absence [and replacement] will make, it remains to be seen.

I think women's rights more generally [are vulnerable now]. The extent to which the court remains in support of things like Obergefell again will remain to be seen. You'd imagine a Trump nominee would not be in alignment with those [rulings].

Is there any page Democrats in Congress might take from Mitch McConnell's playbook to obstruct the nomination process?

They don't have the same power. I think their capacity to delay is quite limited. Democrats may well try to play to the public, but it's unclear to what extent the public plays much of a part in the near future on this.

Are there any other broad takeaways here?

[For Republicans,] the effort to block Garland clearly paid off.

This interview has been edited for length and clarity.