This Is Justice Kennedy’s Impact on Women’s Rights
When Justice Anthony Kennedy announced his retirement from the Supreme Court on June 27, 2018, the news sparked an outcry. The left cried out in anguish that President Donald Trump would nominate a conservative to fill the seat; the right, including Trump’s son Donald Trump, Jr., cried out in delight for the exact same reason. This is the second time in the 20 months of his presidency that Trump will be in the special position of nominating a Supreme Court justice, a job with no term limits. Even if Trump is impeached or quits or is voted out in 2020, his influence on the American concept of justice will be felt for years, or likely decades, to come.
After 30 years on the job, Justice Kennedy’s final day is July 31. In his time in office, he’s weighed in on some the most important issues of our time and indelibly shaped the culture and society of the United States. Here’s a look at his impact — especially in the realm of women’s rights — and a glimpse at what comes next.
The country just lost a solid swing vote...
Nominated by President Ronald Reagan in November 1987, Kennedy had an inauspicious entry to the Supreme Court: He was essentially Reagan’s third choice for the role, as one candidate dropped out and another was rejected by the Democrat-controlled Senate in one of the more controversial confirmation processes in history. In an effort to please everyone — but especially Democrats — Reagan tried for Kennedy, a judge who “has earned a reputation as a careful judge of basically conservative leanings who approaches legal problems case by case,” as the New York Times described him at the time. He was confirmed unanimously, 97-0.
During his confirmation process, Kennedy said that “It would be highly improper for a judge to allow his or her personal or religious views to enter into a decision respecting a constitutional matter.” And indeed, throughout key cases of the last three decades, he took pains to adhere to legal precedent, not any personal attachments. Thus you never quite knew which way he’d go.
He upheld the privacy paradigm set forth by Roe v. Wade in the landmark case of Planned Parenthood v. Casey in 1992, which reaffirmed the concept that laws putting an “undue burden” on women seeking abortions are unconstitutional. But then he also codified a dilation-and-evacuation ban in 2003 with Gonzales v. Carhart. He protected the right to burn a flag in 1989, and the right for colleges to admit students on the factor of race in 2016. He thrice voted to protect certain groups from the death penalty. As a free-speech advocate, though, he also voted to protect corporations over people in the infamous campaign financing case Citizens United in 2010; the Hobby Lobby execs over the employees seeking birth control in 2014; and the homophobic baker in this year’s Masterpiece Cakeshop v. Colorado Civil Rights Commission.
Of all his decisions, history may remember him most warmly not just for his vote on Obergefell v. Hodges, the landmark case making same-sex marriage the law of the land but also for his authorship of the majority opinion. The phrasing is so beautiful that many same-sex couples quote it during their wedding ceremonies. “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family,” he wrote. “In forming a marital union, two people become something greater than they once were.”
...which means that the court is about to become conservative.
In the days following Trump’s nomination of Brett Kavanaugh to replace Kennedy, the potential justice was called a “conservative stalwart” by the New York Times, a “sturdy conservative, somewhere between Neil Gorsuch and Chief Justice John Roberts” by USA Today, and “radically conservative” by the Washington Post. Liberal hands were wrung over the influence he might soon have on the toughest social issues of the day, including gun rights and access to healthcare.
“He is a thoughtful, strategic judge who has, over time, moved the direction of the law in a conservative direction, and he has done it with scalpel-like precision,” said John G. Malcolm, a lawyer for the conservative thinktank the Heritage Foundation. It was intended, of course, as the greatest compliment.
The biggest and most panic-inducing issue over which Kavanaugh might soon hold sway is abortion. Though a recent poll found that 71 percent of Americans are opposed to overturning Roe v. Wade, it’s an ever-present political hot button all the same. As Reagan’s original Supreme Court nominee Robert Bork was specifically rejected for his far-right history on abortion cases, Kennedy was chosen expressly because he seemed he would uphold it. Political opinion has shifted since the late 1980s, though, and Trump vowed during his campaign to appoint justices who would overturn the decision. Where does Kavanaugh fall?
Pundits and reporters have torn through Kavanaugh’s paper trail to find every single reference to Roe v. Wade and abortion cases, but we needn’t look too far back in that history for a solid example: Just last fall, he issued a ruling in Garza v. Hargan that held a 17-year-old undocumented immigrant in government custody back from obtaining the abortion she was seeking; when the decision was overturned by the DC Circuit, he condemned the new ruling, saying “the Government has permissible interests in favoring fetal life” and that the “decision represents a radical extension of the Supreme Court’s abortion jurisprudence.”
Today, it’s not hard to see how Roe could be overturned, and quickly: A state would just need to pass legislation that prohibited types of abortion — say, Iowa’s recently signed heartbeat law, which bans abortions after the point at which a fetal heartbeat can be detected, or as early as six weeks. If a person or group such as Planned Parenthood or NARAL or the ACLU were to challenge the law, and the fight traveled up to the Supreme Court, the justices could vote to uphold the abortion-restricting law, reexamining their interpretation of the constitution and reversing Roe v. Wade’s precedent.
States are chomping at the bit to prepare for that moment: Massachusetts, this month, voted to strengthen its state abortion laws to make sure the procedure will always be accessible, while four red states have put “trigger” laws in place that would automatically ban abortion the moment Roe were overturned. They were passed with the hopes this moment would come.
The Senate will get even cattier.
In 2016, Senate Republicans efficiently and permanently blocked President Barack Obama’s Supreme Court nominee Merrick Garland. He was nominated in March, but Senate Majority Leader Mitch McConnell argued that the confirmation process would fall too close to the crucial presidential election, which was then some eight months away. It was one of the most frustrating or effective examples (depending on your political persuasion) of congressional gridlock in recent memory — and now, three months away from the impending midterms, the Democrats are using the same tactic to try to block Kavanaugh.
“There should be no consideration of a Supreme Court nominee until the American people have a chance to weigh in,” said Senator Dianne Feinstein in a statement. “Leader McConnell set that standard in 2016 when he denied Judge Garland a hearing for nearly a year, and the Senate should follow the McConnell Standard."
Republicans hold the majority in the Senate and could certainly confirm Kavanaugh easily, but there’s a race against the clock to get it done by 2018 midterms on November 6 in case they lose that majority (the Senate is currently divided 51-49, but if more Democrats are elected, that could change). It is possible for the Democrats to drag their heels until then, and in the days following the nomination, Senate Minority Leader Chuck Schumer laid bare his plan to do so: with Senator John McCain away being treated for cancer, the Republican majority is slim at 50-49. Every Democrat senator would have to hold the line, but they’d only have to convince one Republican (say, a swing voter like Senators Lisa Murkowski or Susan Collins) to work with them in order to delay the vote. They have also requested literally one million pages of materials from Kavanaugh’s past, quite a load of homework, before the confirmation can begin.
And if the Democrats win the majority in November, Kavanaugh could absolutely be rejected. It doesn’t happen very often, but a dozen Supreme Court nominees have been voted down by the Senate in history, including one put forth by George Washington. (That rejected candidate, John Rutledge, reacted to the Senate decision by throwing himself on a dock in Charleston, SC).
Kennedy was appointed during a tumultuous, severely divided time, and so chosen because he was uncontroversial. He leaves public service in an era when the country is just as polarized. No matter what happens with Kavanaugh’s appointment, there’s little hope that Trump will ever come up with a nominee as balanced and mutually beloved as Anthony Kennedy.