Supreme Court Justice Anthony Kennedy announced his retirement on Wednesday, handing President Trump and the GOP Senate an opportunity to shift the nation’s high court to the right for decades.
Kennedy, whom President Reagan nominated to the court in 1987, has for years been the court’s swing vote in a series of landmark 5-4 decisions, siding with conservatives to protect religious liberty and settle the outcome of the 2000 presidential election but with Democrats on issues ranging from same-sex marriage to the right to an abortion.
His retirement at the age of 81 immediately triggered a furious confirmation battle that is likely to dominate politics over the next few months.
{mosads}Trump said he would immediately begin considering a replacement for Kennedy, who he said would come from a list of 25 candidates already put together in the case of an opening,
“It will be somebody from that list,” Trump told reporters at the White House. The president called Kennedy a “great justice” who “display[ed] great vision” and “tremendous heart.”
Moments after the news was announced, Senate Majority Leader Mitch McConell (R-Ky.) said the Senate would act to confirm Kennedy’s successor before the midterm elections.
“We will vote to confirm Justice Kennedy’s successor this fall,” he said on the Senate floor.
The retirement immediately led to fears from abortion rights advocates that a new justice appointed by Trump could join with the court’s other four conservatives to strike down Roe v. Wade.
Kennedy voted to uphold the Roe v. Wade decision 1992’s Planned Parenthood v. Casey, in a case that also allowed states to enact restrictions on the procedure.
CNN legal analyst Jeffrey Toobin predicted in a tweet that abortion will be illegal in 20 states within the next 18 months because of Kennedy’s retirement.
“Roe v. Wade is going to disappear,” he said in repeated appearances on the network.
Planned Parenthood urged abortion-rights supporters to call on the Senate to reject any anti-abortion nominee Trump selects.
“The significance of today’s news cannot be overstated: The right to access abortion in this country is on the line,” the group’s executive vice president, Dawn Laguens, said in a statement.
Democrats in the Senate have little hope of blocking the confirmation of Trump’s pick, though the GOP has just a 51-49 majority.
Senate Republicans changed the chamber’s rules to prevent filibusters on nominees to the Supreme Court in 2017 after Democrats sought to block Neil Gorsuch, Trump’s pick for the court.
On Wednesday, Democrats argued that a confirmation vote should be delayed until after the midterm elections. They noted that Republicans blocked former President Obama’s last pick for the Supreme Court, Merrick Garland, with the argument that it should wait until after the 2016 presidential election.
“Senator McConnell set a precedent when he refused to hold a hearing on Merrick Garland, and he should stick to the rule he set,” Sen. Chris Murphy (D-Conn.) said in a statement.
Republicans, however, signaled they have no intention of delaying the confirmation.
Kennedy announced his bombshell decision in a letter to Trump delivered to the White House on Wednesday afternoon.
“It has been the greatest honor and privilege to serve our nation in the federal judiciary for 43 years, 30 of those on the Supreme Court,” Kennedy said in a statement provided by the court’s public information office.
He added that while his family was willing for him to continue to serve, his decision to step aside was based on his deep desire to spend more time with them. His retirement is effective on July 31.
Kennedy is the court’s longest-serving member and second-oldest justice after its leading liberal, Ruth Bader Ginsburg, who is 85.
Speculation that Kennedy might retire has shadowed the term’s last few months, though it appeared there would be no big retirement news when Chief Justice John Roberts adjourned the court for its summer recess earlier on Wednesday.
How justices will vote after they are confirmed by the Senate is never a sure thing, and Kennedy was a clear example of that rule.
Kennedy was often a reliable conservative vote on the court, something underlined by a few of his decisions in the current term. He sided with the court’s conservative justices Tuesday to uphold Trump’s travel ban. Earlier in the term, he ruled, albeit narrowly, for a Colorado baker who refused to make a cake for a same-sex wedding. Kennedy said Colorado’s Civil Rights Commission had treated the baker unfairly when it first heard his argument that his cakes are an artistic expression of speech and religion protected by the First Amendment.
But Kennedy disappointed conservatives in the 1992 Planned Parenthood v. Casey decision, and he may be remembered in history for a series of decisions that expanded LGBT rights in the United States.
Most notably was his 2015 decision in Obergefell v. Hodges, which gave same-sex couples the constitutional right to marry.
“Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions,” he wrote. “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
That decision followed his decision in 2003 to strike down a Texas sodomy law and the decision he authored in 1995, which struck down an amendment to Colorado’s Constitution that prevented state and local governments from protecting LGBT people from discrimination.
Some have speculated that Roberts will assume the role as a swing voter on the court after he sided with the court’s liberal wing in 2015 to uphold ObamaCare’s subsidies.
Other legal scholars saw Kennedy as one of a kind.
Dan Epps, an associate professor of law at the Washington University School of Law who once clerked for Kennedy, said the increased activism of liberal and conservative groups in the judicial voting process makes it unlikely another Kennedy will be seen.
Kennedy’s road to the court, however, is also a reminder of how divisive judicial picks to the Supreme Court have become.
The Sacramento, Calif., native got the nod after Reagan’s first nominee, Judge Robert Bork, was rejected by the Senate, and his second nominee, Judge Douglas Ginsburg, was pressured to withdraw his name after admitting he had smoked marijuana several times.
Looking for a moderate who could sail through confirmation, Reagan tapped Kennedy, then a judge on the U.S. Court of Appeals for the 9th Circuit.
More than three decades later, Kennedy is retiring with a sizeable legal legacy from the high court.