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Examining What Justice Anthony Kennedy's Retirement Means

Jun 28, 2018
Originally published on June 28, 2018 8:09 am
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DAVID GREENE, HOST:

We are used to announcements that rock the nation's capital. But when a Supreme Court justice retires, an era is over. And that is doubly so when the justice is ideologically at the center of the court and has often cast the decisive fifth vote in closely divided cases. And so it is with Justice Anthony Kennedy, who announced his retirement yesterday.

And joining us now is NPR legal affairs correspondent Nina Totenberg to talk about the justice and what his retirement means. Hi, Nina.

NINA TOTENBERG, BYLINE: Hi, David.

GREENE: So - huge moment. I mean, can you just put this in perspective for us?

TOTENBERG: You know, I've started quoting the rock band R.E.M.

GREENE: Oh, good.

(LAUGHTER)

TOTENBERG: Kennedy's retirement is the end of the world as we know it, at least at the Supreme Court. Just think, a few days ago, after the court punted on the question of extreme partisan gerrymandering, lawyers attacking that practice still thought they had a chance to come back next term and prevail. Well, I think that's probably out the window now. And many of the outcomes can be voted for, even championed, are now in doubt - the right to abortion, affirmative action in higher education, a moderate approach to gun rights, some limits on the president's power in waging the war on terror and, of course, gay rights.

GREENE: Right.

TOTENBERG: More than any other justice, he was responsible for the advance of LGBT rights. And writing for all - he wrote all four of the court's opinions over nearly two decades and ultimately declared marriage between two people of the same sex a fundamental right protected by the Constitution, just as marriage between two people of different races is protected.

GREENE: Alright, Nina, stay with us. We're going to listen to your report here about Justice Kennedy and the years he's served on the court. It starts with him announcing that opinion on same-sex marriage from the bench.

(SOUNDBITE OF ARCHIVED RECORDING)

ANTHONY KENNEDY: No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family.

TOTENBERG: The past does not determine the future, he says. The Founding Fathers deliberately created a Constitution that could adjust to the realities of future times. Or, as he put it in a 2003 decision...

(SOUNDBITE OF ARCHIVED RECORDING)

KENNEDY: They knew times can blind us to certain truths, and later generations can see that laws once thought necessary and proper, in fact, serve only to oppress.

TOTENBERG: Kennedy's pivotal role on same-sex marriage may have been the most momentous of his career, but his 2010 decision, striking down many limits on campaign money, similarly remade the way political campaigns are conducted in the nation. The decision unleashed an ever-growing flood of cash and reversed a century-old legal understanding that had sought to prevent corruption by barring corporations, and later labor unions, from spending their general treasury funds on candidate elections.

For Justice Kennedy, reversing that legal understanding from the early 1900s was the realization of a long-held view of free speech.

(SOUNDBITE OF ARCHIVED RECORDING)

KENNEDY: Political speech is indispensable to decision-making in a democracy. And this is no less true because the speech comes from a corporation rather than an individual. Government may not suppress political speech on the basis of the speaker's corporate identity.

TOTENBERG: Anthony McLeod Kennedy was born into the American political system on the Republican side. His father was a prominent and politically connected lawyer-lobbyist in Sacramento, Calif. The son would graduate with honors from Stanford, the London School of Economics and Harvard Law School. At the age of 39, he was appointed to the U.S. Court of Appeals for the Ninth Circuit, where he served for 12 years until President Reagan nominated him to the U.S. Supreme Court in the aftermath of the failed Robert Bork nomination in 1987.

Once on the High Court, Kennedy would prove to be a conservative justice with a libertarian streak that often infuriated social conservatives. In a landmark 1992 abortion case, for instance, he cast the decisive vote upholding what he and others in the majority called the core of Roe v. Wade.

(SOUNDBITE OF ARCHIVED RECORDING)

KENNEDY: Our cases recognize the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting. A person has the decision whether to bear or beget a child. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, the mystery of human life.

TOTENBERG: Conservative critics, particularly conservative academics, ridiculed passages like that, calling them self-important and grandiose. But Kennedy was undeterred, as evidenced by his decisions in many areas of the law.

On the death penalty, he voted consistently for capital punishment, but he provided the decisive vote to bar the death penalty for juveniles and the mentally disabled.

On questions of religion, Kennedy, an observant Catholic, was generally sympathetic to expressions of religion in the public square, but he drew the line at prayer in public school.

In race cases, he usually, though not always, sided with the conservative majority, as he did in voting to strike down a key provision of the Voting Rights Act.

On a different subject - affirmative action - he seemed to change his mind and wrote the court's majority opinion, upholding the use of race as a factor in college admission.

In cases stemming from the war on terror, Kennedy was often the critical fifth vote to limit presidential and congressional action. In 2007, he wrote the court's opinion declaring that the president and Congress had exceeded their powers in barring Guantanamo detainees from going to court to challenge their detentions.

During his 30-year tenure, there were two recurring critiques of Kennedy's work. Critics said that while the justice liked to portray himself as a judicial minimalist, he was, in fact, a judicial imperialist, voting to strike down more state and federal laws than any other member of the Supreme Court. Kennedy's biographer Frank Colucci.

FRANK COLUCCI: In practice, Kennedy is willing to use judicial power quite assertively.

TOTENBERG: The other rap on Kennedy was that he was an agonizer, vacillating in his views so much that the most derisive conservative critics called him Flipper. His former law clerks, however, largely disputed that criticism, contending that the way Kennedy decided cases was misinterpreted. Former clerk Brad Berenson.

BRAD BERENSON: What he typically does is he tries on each position for size, almost for the sake of argument. That's the way he works through the positions and their implications until he finds one that he's comfortable wearing.

TOTENBERG: Federal Appeals Court Judge Brett Kavanaugh, a former clerk, remembers how Kennedy would bring his clerks into his office to discuss a case before it was argued.

BRETT KAVANAUGH: And that was a fascinating process where he'd have out his whiteboard and be writing pros and cons, and this argument favors this side, but what about this argument? And he'd write them up on the board and discuss them through for hours on end.

TOTENBERG: On the Supreme Court, Justice Kennedy may often have been a lightning rod for the right or left. But even when colleagues lambasted him with oral dissents from the bench, he seemed impervious, his face perhaps deliberately bland and expressionless. Judge Kavanaugh.

KAVANAUGH: He received tremendous criticism over the course of his career. And yet, he was one who stuck to his principles. It's not easy to do, and he's done it consistently over time, recognizing that that's the role of a judge.

TOTENBERG: Judge Kavanaugh, by the way, is on President Trump's list of potential Supreme Court nominees.

GREENE: All right. NPR's Nina Totenberg reporting there. Nina is still with us this morning. Nina, you mentioned the list of potential Supreme Court nominees. President Trump, it sounds like, actually does have a physical list. So what happens next?

TOTENBERG: Well, he had two during the campaign. The first one was so successful in convincing social conservatives that he was their guy that he then issued a second list, so.

Both lists were put together by Leonard Leo, who heads up the conservative Federalist Society, and folks at the conservative Heritage Foundation. There are some very distinguished judges on the list, including Kavanaugh, but they're all pretty far to the right of Justice Kennedy.

So the bottom line is whoever Trump picks, and however bitter the confirmation fight is, the new justice will solidify a hard-right conservative majority, the likes of which this country probably has not seen in three-quarters of a century. And I mean that in a way that goes far beyond the hot-button social issues. Business is already winning cases, and labor losing them. Just yesterday, the court issued a decision that will undercut the power of labor unions, leaving them with less money, less political clout. A hardcore conservative majority could also make it virtually impossible to bring sex or race discrimination employment suits in federal court. It could aggressively strike down gun regulations. The list just goes on and on.

GREENE: Well, let's get a little bit into the nuts and bolts of how this will play out. What is next? And what happens with this confirmation process?

TOTENBERG: Well, it's going to be a lulu.

(LAUGHTER)

TOTENBERG: You may recall that in 2016, Republican leader Mitch McConnell blocked the Senate from even considering President Obama's nominee to fill the vacant seat after Justice Scalia died. And then after Trump was elected, the Republicans abolished the filibuster in order to confirm Trump nominee Neil Gorsuch.

So the bottom line here is that Republicans still control the Senate by just two votes, and they're going to try to push this through before their election. It doesn't matter if the Democrats cry hypocrisy. They're going to do it, and they're going to succeed unless a couple of Republicans come over to the Democratic side and vote with them. And I would say that's a very long shot.

GREENE: All right. NPR legal affairs correspondent Nina Totenberg as we begin a process - a confirmation process for a new Supreme Court justice once President Trump makes his pick. A huge story this election year. Nina, thanks a lot.

TOTENBERG: Thank you, David. Transcript provided by NPR, Copyright NPR.