Justice Anthony Kennedy, a native of Sacramento, brought his hometown’s pragmatism and values to the nation’s most powerful court. And that has mostly been good for California and America.
Kennedy, 81, announced his retirement Wednesday, just hours after the U.S. Supreme Court issued its final decisions of the term. For more than a year, there had been speculation and discussion, but still, it felt like the end of an era.
Perhaps that’s because it is.
As UC Berkeley law dean Erwin Chemerinsky wrote last June in The Sacramento Bee, Kennedy has been the controlling swing vote on a stunning range of issues, confounding liberals and conservatives, though not those who understand California’s Central Valley.
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“Few modern justices have had as much influence on constitutional law as Anthony Kennedy,” wrote Chemerinsky. “For a long time now, it really has been the Kennedy Court.”
Nominated by another Californian, Ronald Reagan, Kennedy joined the court in 1988 and is its only Californian.
While he wasn’t as doctrinaire as some other justices, he was still a traditional conservative. He authored the infamous Citizens United decision that gave millionaires and corporations too much influence in our politics.
And this week, he was part of 5-4 majorities upholding President Donald Trump’s latest travel ban, backing anti-abortion pregnancy centers in California and dealing public sector unions a big setback.
Yet Kennedy’s most lasting legacy may be on the liberal issue of gay marriage. For two decades, he wrote every major decision on gay rights. And he did so again in the June 2015 ruling that legalized same-sex marriage in all 50 states.
The court’s reasoned rulings undoubtedly helped move public support in favor of what was then a cultural shift of epic proportions. Families all over America are families because of Kennedy.
Now, Trump, who appointed Justice Neil Gorsuch last year to replace the late Antonin Scalia, gets a second nomination to the Supreme Court. He will no doubt seek another conservative who could change the nation’s laws on fundamental issues, and perhaps even overturn Roe v. Wade, the 1973 abortion rights decision that Kennedy kept in place.
With so much at stake, it is sure to be a brutal political fight. Republicans, led by Senate GOP Leader Mitch McConnell, stopped President Barack Obama from picking a justice before the 2016 election. By that same logic – which Democrats are calling the “McConnell standard” – Trump and Senate Republicans should wait until after the November midterms, so voters in this moment of intense polarization can have their say on the future of the court.
The president thanked Kennedy, who will leave the court July 31, for his “years of tremendous service” and called him a “great justice,” but said he’s primed to pick another “outstanding” jurist.
We can only hope so. The next justice will have some big shoes to fill.