Justice Anthony Kennedy sent Washington into a frenzy Wednesday when the court announced he would retire from the Supreme Court.
End-of-term retirement rumors had been surrounding Kennedy for months, and hours after Chief Justice John Roberts gaveled to end the October 2017 term, the court announced Kennedy would be retiring effective July 31.
“It’s the most consequential change to the Supreme Court’s membership in many decades,” Dan Epps, an associate professor of law at Washington University School of Law who clerked for Kennedy, told the Washington Examiner. “Now, he was a conservative Republican for sure, but there were a bunch of issues where he wasn’t rock solid.”
For many of his 30 years on the high court, Kennedy has served as the crucial swing vote, joining with the liberal wing of the bench in cases involving abortion, affirmative action, and LGBT rights, but joining the conservative justices in campaign finance and gun rights cases.
Already, Kennedy’s retirement has Democrats and liberal groups fretting about the future of abortion rights and affirmative action, as President Trump has vowed to name justices to the high court who are originalists and textualists.
Epps predicted the president’s pick to replace Kennedy will be in the model of Justice Neil Gorsuch, Trump’s nominee to fill the late Justice Antonin Scalia’s seat, and said a candidate of that nature would have a profound impact on the court.
[Related: Here are the 25 possible candidates to replace Kennedy]
“That person will significantly shift the court’s jurisprudence in terms of outcomes and how extensive the reasoning is,” he said.
But Kennedy’s decision to step down from the court also could shift the role of Chief Justice John Roberts.
“He’s got an unenviable position,” Epps said. “He’s likely to be both the chief justice and the median justice. He will be at the center of the court and be chief justice, assigning opinions.”
Trump told reporters he will name a successor to Kennedy from his public list of 25 contenders, and though it’s unknown who his choice will be, here are the issues the court could revisit in the wake of Kennedy’s departure.
Abortion
Early in his tenure on the court, Kennedy joined Justices Sandra Day O’Connor and David Souter in writing the majority opinion in the 1992 case Planned Parenthood of Southeastern Pennsylvania v. Casey, which reaffirmed Roe v. Wade and established that a state’s abortion restrictions cannot place an “undue burden” on a woman seeking an abortion.
In 2007, though, he joined the conservative justices in upholding the ban on partial-birth abortions.
With Kennedy’s impending retirement, anti-abortion groups believe a key opportunity has presented itself to overturn abortion rights rulings such as Roe and Casey.
“Justice Kennedy’s retirement from the Supreme Court marks a pivotal moment for the fight to ensure every unborn child is welcomed and protected under the law,” Susan B. Anthony President Marjorie Dannenfelser said in a statement.
Despite the fervor concerning the future of Roe, some are skeptical the Supreme Court would overturn its 1973 precedent.
Leonard Leo, an outside adviser to the White House for judicial nominations, said there has been talk surrounding the future of Roe since the early 1980s.
“I think it’s dangerous and overly speculative to place too much of an emphasis on that issue,” Leo told the Washington Examiner. “It’s impossible to know what’s going to happen. The most important thing is to find an individual who is going to call it the way he or she sees it and is going to be independent and faithful to the Constitution. I think that handicapping on the abortion issue is not a very fruitful line of inquiry.”
Affirmative action
Kennedy shifted his views on affirmative action during his years on the Supreme Court.
In a 2003 Supreme Court decision that upheld the use of race as a factor in admissions at the University of Michigan Law School, Kennedy dissented. But in 2016, he wrote the majority opinion in a case upholding the affirmative action program at the University of Texas.
Some of Kennedy’s conservative colleagues on the court, such as Justice Clarence Thomas, are vocal in their opposition of affirmative action.
With Kennedy no longer on the bench, Josh Blackman, a law professor at South Texas College of Law, said affirmative action policies may be struck down.
“That’s an issue that Kennedy has cast the swing vote on,” he told the Washington Examiner.
The administrative state
Kennedy’s conservative colleagues on the court, such as Gorsuch and Thomas, have been critical of the Chevron doctrine, which stems from the 1984 case Chevron v. Natural Resources Defense Council Inc. and says the courts should defer to federal agencies’ reasonable interpretations of statutes when they are ambiguous.
Kennedy raised eyebrows last week when, in a concurring opinion, he suggested it may be time to reconsider “the premises that underlie Chevron and how courts have implemented the decision.”
A new conservative justice on the court could give momentum to concerns about the deference given to executive branch agencies, and Leo said he believes that would be a “continuing trend.”
“There is increasing skepticism on the court about excessive deference to the administrative state, and I do think we saw that in Justice Kennedy’s concurrence,” he said.
Epps, too, cited Kennedy’s recent reservations about the Chevron doctrine, in foreshadowing how his retirement could affect agency power.
“The next justice will be more eager to rein in the administrative state,” he said.
Gay rights
Kennedy became a champion for LGBT rights during his time on the Supreme Court, cementing his legacy on the issue in 2015 when he wrote the majority opinion in the landmark case that legalized gay marriage.
But in the wake of that ruling, cases have arisen involving both LGBT rights and religious liberty.
The court heard one of those cases, involving a Colorado baker who declined to make a cake for a same-sex couple’s wedding reception, this term. But the high court issued a narrow ruling, with Kennedy writing for the majority, that focused on the Colorado Civil Rights Commission’s treatment of the baker.
This week, the justices passed on an opportunity to hear what would have been a sequel to the Colorado case, this one involving a Washington state florist.
Though it’s unlikely the high court would overturn the 2015 decision on same-sex marriage, it could with a solid conservative majority rule for parties who argue their First Amendment rights were infringed upon by having to provide services for same-sex weddings in violation of their religious beliefs.
“Kennedy was often with the religious plaintiffs in those cases, but not always,” Epps said. “I think we’re going to see a more consistent conservatism there.”
After Kennedy announced his retirement, Senate Majority Leader Mitch McConnell, R-Ky., said the Senate will vote to confirm a new justice to the high court in the fall, setting up a fierce battle in the run-up to the midterm elections in November.
While many questions surround how Kennedy’s legacy will be affected once his empty seat is filled, Leo said the justice was more often than not part of the conservative bloc of the court.
“This is someone who helped propel the conservative jurisprudential agenda with gun rights and federalism and skepticism about the administrative state, campaign finance,” he said. “People forget that.”
