Justice Kennedy: You Will Hear of Retirement and Rumors of Retirement
[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.]
Rumors are flying again (this time from U.S. Senator Dean Heller) that Supreme Court Justice Anthony Kennedy will retire this summer.1 This is not the first time rumors have circulated about the elusive retirement of Justice Kennedy. The topic seems to come up at least once or twice a year lately. His retirement is of particular interest because he is the second oldest justice sitting on the United States Supreme Court (Ginsburg is 84, Kennedy is 81, and Breyer is 79). He has also been serving longer than any other justice on this bench. However, his retirement has been of particular interest because 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. Casey2 reaffirming Roe v. Wade and the right to abortion under the Due Process Clause.
- Kennedy authored the 6-3 majority opinion in Romer v. Evans3 invalidating a Colorado Constitutional provision denying homosexuals the right to bring discrimination claims.
- Kennedy authored the 6-3 majority opinion in Lawrence v. Texas4 invalidating criminal laws against homosexual sodomy under the Due Process Clause.
- Kennedy authored the 5-4 majority opinion in Kennedy v. Louisiana5 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. Windsor6 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. Hodges7 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. Minnesota8 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. Dale9 upholding the Boy Scouts right to ban homosexuals from being scoutmasters.
- Kennedy joined the 5-4 majority in District of Columbia v. Heller10 striking down the ban on handguns in the District of Columbia.
- Kennedy authored the 5-4 majority opinion in Florence v. County of Burlington (2012)11 holding that people admitted to the general jail population may be subjected to strip searches even when there is no reason to suspect contraband.
Ever since the Obergefell opinion on gay marriage, people are beginning to wake up to the belief that the judiciary (and the Supreme Court in particular) may be the most powerful and influential branch of the U.S. government. The exclusive right to interpret the laws and Constitution of the United States is a powerful tool. For example, Congress can pass a law defining marriage as between a man and a woman, but the U.S. Supreme Court can strike down that law as unconstitutional. In fact, that is just what Justice Kennedy did in United States v. Windsor. The only recourse the public has in that situation is to petition Congress to amend the Constitution, which is a very rare occurrence. The last two amendments to our Constitution took place in 1992 and 1971. In other words, when the Supreme Court says something is unconstitutional, that is usually the end of the matter. Simply put, a U.S. Supreme Court justice may not be a high profile position, but it is a very powerful one nonetheless.
With a stroke of the pen, Justice Kennedy changed the history of the United States by holding that all states are forced by the Constitution to recognize same-sex marriages. The homosexual community has been emboldened and the pressure is on. People are losing their jobs and are being shouted down and physically intimidated for having the conviction to stand by the Bible when it comes to calling sin “sin.” Have you noticed more and more TV shows and movies where homosexual characters are more prominent than ever? If you just followed the pseudo-reality of TV shows and movies, one would think that nearly half the population is homosexual. Have you noticed how businesses are subtly interjecting homosexual couples into their commercials? A company selling homes shows a quick montage of scenes depicting the joys of home ownership, including kids playing in a park, a mom and dad holding up a baby, two men holding hands, and grandparents going for a walk. It is quick and subtle, but this sin is all around us, and the United States Supreme Court says it is sanctioned and protected by the Constitution—all because one man who stands between an ideologically splintered court decided to swing to the left.
This is why so many are talking about and interested in when Justice Kennedy will retire. If Justice Kennedy were to retire soon, it would allow President Trump to fill a second Supreme Court seat after nominating Neil Gorsuch to replace Antonin Scalia, who died in 2016. It would be hard to overestimate the importance of the role of the 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 (it shouldn’t, but it can) unfortunately turn into the role of creating the law as well. Therefore, please pray for your government and political leaders that they will make decisions that will allow us to lead quiet and peaceful lives (1 Timothy 2:2).
2 Planned Parenthood v. Casey, 505 U.S. 833 (1992).
3 Romer v. Evans, 517 U.S. 620 (1996).
4 Lawrence v. Texas, 539 U.S. 558 (2003).
5 Kennedy v. Louisiana, 554 U.S. 407 (2008).
6 United States v. Windsor, 570 U.S. 12 (2013).
7 Obergefell v. Hodges, 135 S. Ct. 2071, 576 U.S. (2015).
8 Hodgson v. Minnesota, 497 U.S. 417 (1990).
9 Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
10 District of Columbia v. Heller, 554 U.S. 570 (2008).
11 Florence v. Board of Chosen Freeholders, 566 U.S. 318 (2012).
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