Time being what it is, U.S. Supreme Court Justice Anthony Kennedy, almost 81, will retire one day. We hope it’s not any day soon.
Certainly, the Ronald Reagan appointee who joined the court in 1988 has devoted plenty of years to our nation. But as the high court ended its 2017 session Monday, three decisions in particular illustrated the importance of Kennedy’s voice on the court, each relevant to California.
Kennedy, the one Californian on the high court, sided with the majority in each case. President Donald Trump’s one appointee, Neil M. Gorsuch, a former Kennedy law clerk, was aligned with the conservative members, in the minority. For now.
In a 6-3 decision, Kennedy joined the majority blocking aspects of President Donald Trump’s ill-conceived travel ban on refugees from six majority Muslim nations, putting off until 2018 a full review with, we hope, Kennedy still part of the court.
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Monday’s decision permits people to emigrate here from Iran, Libya, Somalia, Sudan, Syria and Yemen if they have “a credible claim of a bona fide relationship with a person or entity in the United States.” That stand upholds this nation’s principle of welcoming refugees, while deferring to a president’s power.
Kennedy also was part of the majority that refused to consider a challenge to California’s right to regulate gun owners who want to carry their weapons in public. In Peruta v. California, advocates led by the California Rifle and Pistol Association Foundation contended San Diego and Yolo county sheriffs made it too hard to obtain permits to carry concealed firearms.
The U.S. 9th Circuit Court of Appeals noted that the high court had not decided whether firearms could be openly carried, but wisely held that the Second Amendment does “not extend to the carrying of concealed firearms.”
Justice Clarence Thomas, joined by Gorsuch, dissented, writing that the majority’s refusal to consider the case suggested the Second Amendment is a “disfavored right.” That’s hardly the case. Any adult who abides by the law and has not been judged to be mentally ill can own firearms. But lethal weapons in public is something the government ought to be able to regulate.
In a third case, the justices voted 6-3 to overturn an Arkansas law that treated same-sex couples differently than opposite-sex couples on their children’s birth certificates, automatically listing a birth mother’s husband as a child’s father, but requiring gay couples to get a court order.
The justices cited the 2015 case written by Kennedy upholding the right of same-sex couples to marry, noting the state court’s support of the law “denied married same-sex couples access to the ‘constellation of benefits’ ” linked to marriage.
Gorsuch dissented, calling the decision “overbroad,” and justifying the Arkansas law as merely “designed to ensure that the biological parents of a child are listed on the child’s birth certificate.”
Rumors of Kennedy’s retirement spread in recent weeks. No one could blame him if he were to decide to spend more of his remaining time with his family, perhaps even return to his hometown of Sacramento and teach at McGeorge Law School. And we haven’t always agreed with his decisions.
But there are important reasons for him to remain. As Erwin Chemerinsky, incoming dean of UC Berkeley’s law school, wrote in an op-ed for The Sacramento Bee, he’s a true swing vote. Major cases involving religion, gerrymandering and more are on the 2018 docket.
We have no clue how Kennedy would rule, to his credit. But based on Gorsuch’s early votes, a second Trump justice would shift the court to the hard right, for years to come.