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Justice Kennedy Just Eclipsed the U.S. Supreme Court’s Incredible June 2018

by  Kevin Cain, J.D.

[Editor’s Note: The following article was written by A.P. auxiliary staff writer, Kevin Cain, who holds degrees from Freed-Hardeman University (B.S., M.Min.) and the Doctor of Jurisprudence from South Texas College of Law. A former Briefing Attorney of The First Court of Appeals, his current practice focuses on litigation at the trial and appellate levels in both State and Federal Courts.]

Political conservatives stood and applauded the U.S. Supreme Court over and over again in the month of June. With one conservative victory after another, the U.S. Supreme Court had a very eventful month. Many eyes eagerly anticipated long-expected opinions from the Court on numerous hot-button topics, and SCOTUS answered with opinion after opinion that landed repeatedly on the right side of the political spectrum.

In the midst of a month where the political/cultural right and left were going at it as if civility and collegiality were gone on summer vacation, the Supreme Court delivered multiple monumental decisions that drew unprecedented attention away from the usual press coverage of politicians and political pundits, and focused on the highest court in the United States. In the middle of this jurisprudential storm of cultural legal battles and headline-grabbing decisions, Justice Kennedy may have been the biggest story of the month officially announcing his retirement effective July 31, 2018.1

The month of June in 2018 will not soon be forgotten insofar as SCOTUS is concerned. Note the following decisions and which core of five judges dictated the outcome:

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Com'n

Justice Kennedy delivered the opinion of the Court joined by Chief Justice Roberts and Justices Bryer, Alito, Kagan, Gorsuch, and Thomas (7-2). The Court held that the Colorado Commission’s treatment of a baker violated the State’s duty to refrain from enforcing laws with hostility toward religion.2

Janus v. Am. Fed'n of State, County, & Mun. Employees, Council 31, 16-1466

Justice Alito delivered the opinion of the Court joined by Chief Justice Roberts and Justices Kennedy, Thomas and Gorsuch (5-4). The Court held that forcing workers to finance union activity violated the First Amendment. “We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”3 This case illustrates the significance of the appointment of Justice Gorsuch in 2017. A similar case came before the U.S. Supreme Court and was argued while Justice Scalia was still on the bench. However, Justice Scalia died before the opinion was issued, leaving the case in a 4-4 deadlock. This Janus case had Justice Gorsuch breaking the tie against unions.

Trump v. Hawaii

Chief Justice Roberts delivered the opinion of the Court joined by Kennedy, Thomas, Alito, and Gorsuch (5-4). The Court upheld President Trump’s travel ban that was repeatedly struck down by the Ninth Circuit Court of Appeals.4

Nat'l Inst. of Family & Life Advocates v. Becerra

Justice Thomas delivered the opinion of the Court joined by Chief Justice Roberts and Justices Kennedy, Alito, and Gorsuch (5-4). The Supreme Court held that the State of California may not require religiously oriented “crisis pregnancy centers” to supply women with information on how to end their pregnancies.5

And yet, in the midst of these significant cultural legal battles, Justice Kennedy may be guilty of stealing the limelight with the long-awaited announcement of his retirement from the bench. His retirement has been a significant subject of discussion and rumors for the past several years.

Justice Kennedy’s retirement is of particular interest because he is the second oldest justice sitting on the United States Supreme Court (Ginsburg is the oldest at 84). He has also been serving longer than any other justice on this bench. However, rumors of his retirement have been floating and stirring for years due in large part to the fact that he has been what is frequently referred to as the “swing vote” on the Supreme Court—meaning, he often decides the outcome of many Supreme Court cases which people often ascribe to “conservative” or “liberal” ideologies.

Kennedy was appointed to the United States Supreme Court by President Reagan in 1988. While it was initially thought that he would be a solid conservative on the bench, his rulings have waffled back and forth on the conservative-liberal spectrum. His vote is often the deciding vote between four Supreme Court liberals and four Supreme Court conservatives to determine the outcome of that case.

Here is a brief overview of some of the more noteworthy cases where Justice Kennedy sided with the left:

  • Kennedy joined the plurality opinion in Planned Parenthood v. Casey6 reaffirming Roe v. Wade and the right to abortion under the Due Process Clause.
  • Kennedy authored the 6-3 majority opinion in Romer v. Evans7 invalidating a Colorado Constitutional provision denying homosexuals the right to bring discrimination claims.
  • Kennedy authored the 6-3 majority opinion in Lawrence v. Texas8 invalidating criminal laws against homosexual sodomy under the Due Process Clause.
  • Kennedy authored the 5-4 majority opinion in Kennedy v. Louisiana9 holding that the Eighth Amendment (“cruel and unusual punishment”) bars the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim’s death, because the death penalty should not be expanded to instances where the victim's life was not taken.
  • Kennedy authored the 5-4 majority opinion in United States v. Windsor10 holding Section 3 of the Defense of Marriage Act (defining marriage as a union between a man and woman) was unconstitutional.
  • Kennedy authored the 5-4 majority opinion in Obergefell v. Hodges11 which holds that all states must allow same-sex couples to marry.

The following are some prominent cases where Justice Kennedy sided with the right:

  • Kennedy joined the 5-4 majority in Hodgson v. Minnesota12 upholding a law requiring both parents to be notified when their minor daughter wanted an abortion.
  • Kennedy joined the 5-4 majority in Boy Scouts of America v. Dale13 upholding the Boy Scouts right to ban homosexuals from being scoutmasters.
  • Kennedy joined the 5-4 majority in District of Columbia v. Heller14 striking down the ban on handguns in the District of Columbia.
  • Kennedy authored the 5-4 majority opinion in Florence v. County of Burlington15 holding that people admitted to the general jail population may be subjected to strip searches even when there is no reason to suspect contraband.

The President of the United States now stands in a very unique position. He will now nominate the justice to take Kennedy’s place. As many are beginning to realize, the position of Supreme Court justice is a very powerful position in terms of impacting the cultural fabric of our nation. And President Trump now stands on the verge of nominating his second Supreme Court justice. While Presidents Obama, W. Bush, and Clinton each nominated two Supreme Court justices, they did so over the course of two four-year terms. It has not been since Presidents H.W. Bush and Nixon that a single president in such a short period of time has nominated more than one justice to the highest court in the United States.

It is hard to overestimate the importance of the role of the U.S. President when he nominates the next Supreme Court justice, a justice who does not serve for a term, but is appointed for life. And the role of a Supreme Court justice is an incredibly powerful position. No disrespect intended, but when someone has the exclusive ability to interpret the law for all, that can unfortunately turn into the role of creating the law as well (sometimes referred to as “judicial activism”). However, if the President’s nomination of Justice Gorsuch is a sign of things to come, we can likely expect another very conservative judge to be nominated. Because Justice Kennedy is vacating the role of the “swing vote,” you can expect some fireworks and hotly contested debates in the hearings of the next judge nominated to replace Justice Kennedy. Therefore, please pray for your government, political leaders, legislators, executive leaders, and especially our judges, “that we may lead a quiet and peaceable life in all godliness and reverence” (1 Timothy 2:2).

Endnotes

2 Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Com'n, 138 S. Ct. 1719 (2018).

3 Janus v. Am. Fed'n of State, County, & Mun. Employees, Council 31, 16-1466, 2018 WL 3129785 (U.S. June 27, 2018).

4 Trump v. Hawaii, 17-965, 2018 WL 3116337 (U.S. June 26, 2018).

5 Nat'l Inst. of Family & Life Advocates v. Becerra, 16-1140, 2018 WL 3116336 (U.S. June 26, 2018).

6 Planned Parenthood v. Casey, 505 U.S. 833 (1992).

7 Romer v. Evans, 517 U.S. 620 (1996).

8 Lawrence v. Texas, 539 U.S. 558 (2003).

9 Kennedy v. Louisiana, 554 U.S. 407 (2008).

10 United States v. Windsor, 570 U.S. 12 (2013).

11 Obergefell v. Hodges, 135 S. Ct. 2071, 576 U.S. (2015).

12 Hodgson v. Minnesota, 497 U.S. 417 (1990).

13 Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

14 District of Columbia v. Heller, 554 U.S. 570 (2008).

15 Florence v. Board of Chosen Freeholders, 566 U.S. 318 (2012).





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