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When Justice Anthony Kennedy retires, an ugly struggle will follow

Anthony Kennedy’s opinions in Planned Parenthood and Obergefell were expressions of radical libertarianism grounded in an individualistic philosophy of life and law.

Rumors have been flying around Washington that Justice Anthony Kennedy will announce his retirement from the Supreme Court shortly after the court’s current term ends late in June. Whether he will or won’t remains to be seen. But it would be no great surprise if he does.

For one thing, Justice Kennedy will turn 82 in July, making him the second oldest member of the court after Justice Ruth Bader Ginsburg, who’s 85. Kennedy has served on the court since 1988, and in recent years has had the satisfaction of being its swing voter, exercising the power to determine the outcome in numerous closely divided cases.

If Kennedy does retire, there’s sure to be a protracted, unusually ugly struggle in the Senate over confirming a successor. President Trump is committed to naming a prolife justice, as he did last year with Justice Neil Gorsuch. Then it will be up to Senate Majority Leader Mitch McConnell (KY) to do all he can to get the successor confirmed before the November elections—that is, while Senate Republicans are still sure of a slim Senate majority.

By the same token, it will be up to Minority Leader Charles Schumer (D-NY) and his Democrats to work to prevent a confirmation vote before the election. And then—who knows? If the Democrats are in charge in the post-election Senate, it will be payback time for the Merrick Garland episode, which saw the confirmation of Barack Obama’s last Supreme Court pick blocked by McConnell and the Republicans by the simple device of refusing to consider it.

Getting back to Kennedy, he is commonly described in the media as a “conservative.” No doubt that is accurate enough on some matters, but where the social issues are concerned, Kennedy, a Catholic, has been anything but conservative, instead playing a key role in defending legalized abortion and conferring constitutional status on same-sex marriage.

In 1992, in a case called Planned Parenthood v. Casey, Justice Kennedy, joined by Justices Sandra Day O’Connor and David Souter, delivered a plurality opinion that settled the question in favor of abortion. It contains a passage in Kennedy’s easily recognized philosopher-king style situating “at the heart of liberty…the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”—words which earned Kennedy’s text recognition in some quarters as the “Ah, Sweet Mystery of Life” opinion.

In 2015, with authorial juices flowing again, Kennedy wrote the majority opinion for a sharply divided court in Obergefell v. Hodges, the case which discovered a previously unknown constitutional right to same-sex marriage. Until then the fight over this issue had gone on largely in state legislatures. Kennedy and the court’s four liberals removed the question from the hands of elected representatives of the people and imposed their answer on the nation as a whole.

Writing in dissent, Justice Samuel Alito said Obergefell would foster the “marginalization” of people with traditional views on marriage. “Recalling the harsh treatment of gays and lesbians in the past,” Alito wrote, “some may think that turn-about is fair play. But if that sentiment prevails, the nation will experience bitter and lasting wounds.” Recent moves to penalize those who oppose same-sex marriage on conscience grounds illustrate the truth of that.

Anthony Kennedy’s opinions in Planned Parenthood and Obergefell were expressions of radical libertarianism grounded in an individualistic philosophy of life and law. Whether he steps down now or later, social conservatives will pray for a successor in a very different mold.

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About Russell Shaw 263 Articles
Russell Shaw was secretary for public affairs of the National Conference of Catholic Bishops/United States Catholic Conference from 1969 to 1987. He is the author of 20 books, including Nothing to Hide, American Church: The Remarkable Rise, Meteoric Fall, and Uncertain Future of Catholicism in America, Eight Popes and the Crisis of Modernity, and, most recently, The Life of Jesus Christ (Our Sunday Visitor, 2021).


    • If there is any time to use the “nuclear option” and doing away with the 60 vote cloture rule on judges this would be the time. Getting a justice in the mold of Alito or Gorsuch would have long-term effects that offset the costs of using that option.

      Plus, the Republican’s are not losing the Senate. Most of the seats up for grabs are in states Trump won so worst case is that the number of R and D in the Senate stay the same.

      If Kennedy does retire the issue in many of those races will largely be putting a Senator in place who will confirm or block Trump’s nominee. I think that motivates both sides so we could see larger turn outs in mid-term Senate races. It may just motivate the religious conservatives a little more, liberal secularists are already fired up.

      • The “nuclear” options was used to seat Gorsuch. Will have to be used again. Will not be a big fight as there would be plenty of time before the mid terms. Kennedy has said he was retiring for years now. I would not hold my breath. Far and away the worst justices are sonia, ruth and stephen. Kagan is an interesting liberal. She sometimes actually appears to know the Constitution.

  1. Not as ugly as the aborting of a baby. Let the pro-life fight begin. Roll up our sleeves, and not waiting for Cardinals and Bishops and or the Pope (climate change Pope)

  2. A side note: This is one issue, though none like to speak of it, that may well provoke physical violence on the left and you will also see the wink and nod by their legislative sycophants. The only thing that might prevent such a happening is if both Ginsburg and Kennedy leave at the same time (not impossible, Ginsburg’s health is quite precarious) and a pair of nominees, to include one that appears progressive, goes forward. In any event you will probably see vitriol and fear mongering by left such as not seen since Petrograd. Be forewarned.

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