Wednesday, June 27, 2018

Justice Kennedy's Retirement

by Michael Dorf

Today's announcement that Justice Kennedy is retiring has led immediately and understandably to speculation about how the process for replacing him will play out. This strikes me as silly. The GOP has 51 votes in the Senate. Mitch McConnell will make sure that a new justice is confirmed before the midterm elections or, in the worst-case scenario for Republicans--i.e., should the confirmation somehow be delayed until after the midterms and the Democrats take the Senate--in a lame-duck session. The new justice will certainly be at least as conservative as CJ Roberts, so regardless of how this goes, the Chief Justice is now the center of the Court.

Here are a few very preliminary observations:


(1) I want to express my personal gratitude to Justice Kennedy for hiring me as a law clerk for the 1991-1992 Term. It was the greatest experience a young lawyer can have, and he was a terrific boss. Although I worry for the Republic, I do not begrudge Justice Kennedy his retirement. All of us make the decision whether and when to retire based on a variety of factors, some of them personal. It would not be fair to ask Justice Kennedy--or anyone--to stay in the job past the point where he felt he could do it the way he wanted to.

(2) I have been highly critical of a great many opinions and dissents that Justice Kennedy authored or joined over the years--especially during the last few weeks, when he seemed to take a turn to the right. Some observers speculated that he was giving up or bowing out, thus signaling his retirement. That's possible, I suppose, but it's also possible that Justice Kennedy was calling them as he saw them and that the particular mix of cases this Term pulled him to the right rather than the left.

(3) How far will the Court now move? That's hard to know. I think that there is now a very substantial chance that the abortion right will be narrowed or even eliminated. That's of tremendous importance, obviously. So too is the quite serious possibility that race-based affirmative action will be deemed unlawful. I think it's less likely that the gay rights decisions--Justice Kennedy's signature contribution--will be overruled. Partly that's because I see Chief Justice Roberts as unlikely to want to go there, but also it's because on these issues the country largely followed where Justice Kennedy led.

(4) More broadly still, Justice Kennedy leaves behind a legacy of libertarianism and constitutional patriotism. Even when I disagreed with Justice Kennedy (which was often) I admired his sincerity. He did not like to be called the "swing justice," because he saw himself as applying principles even-handedly rather than swinging one way or the other. That said, there were fewer easy cases for Justice Kennedy than for just about any of the colleagues with whom he served. Deciding hard cases was a burden for him, but one he willingly bore because of his love for the country.