Justice Kennedy, although a Reagan appointee, frequently voted with the liberal justices on a wide range of issues. For years, he’s been the Court’s swing vote, making him the bane of hard-core conservatives lusting for hard-right Court rulings. Kennedy announced today he will retire July 31, a few days after his 82nd birthday.
A bit of history: Kennedy replaced Lewis Powell, as Reagan’s backup choice after Reagan’s first choice, Robert Bork, was rejected by the Senate. Bork’s anti-civil rights and anti-abortion views were the principal factors in his defeat, but he was also despised by Democrats for doing Nixon’s dirty work of firing Watergate special prosecutor Archibald Cox. Had Bork made it onto the Supreme Court, he would not have served as long as Kennedy, and most likely would have been replaced by George W. Bush, as he died in 2012 at age 85.
Trump now gets to appoint another justice to an already partisan Court. Democrats should do everything they can to delay that appointment until after this fall’s elections, against the chance their prospects of blocking an extremist might improve. A moderate appointee can’t be expected from Trump, and a hard-right appointee will assure the Court’s conservative bloc of a voting majority on every issue. This could mean the end of Roe v. Wade, among other things. It also has potentially serious implications for voting rights and stemming the tide of legalized racism gushing from this administration.
For over a year, liberals and progressives have trembled at the possibility that Kennedy might retire — there was speculation he would do so last year — and the aging Justice Ginsberg’s seat also could fall into Trump’s hands before he’s out of office, but we don’t need to contemplate suicide just yet, because justices have a way of not turning out as the presidents who appointed them expected. Eisenhower once said he made two mistakes as president, and “both of them are on the Supreme Court.” So Trump may not get from the Court what he thinks he’s sending to the Court. But there’s no doubt Kennedy’s retirement will change the complexion of the Court and things are about to get tougher for civil rights, voting rights, women’s choice, unions, and a host of other liberal/progressive causes.