Swing-vote Justice Kennedy retires from US Supreme Court
Kennedy, 81, has served on the court since 1988. Though nominated by the Republican President Ronald Reagan, he has been the swing vote in many 5-4 decisions by the Supreme Court since the 2006 retirement of Sandra Day O’Connor.
Most notably, Kennedy authored the majority opinion in Obergefell v. Hodges, the 5-4 decision that declared same-sex marriages a constitutional right in the entire US in 2015. He has also sided with the court’s more liberal justices on the issues of abortion, affirmative action and capital punishment.
“For a member of the legal profession it is the highest of honors to serve on this court,” Kennedy wrote in a letter informing Trump of his retirement on Wednesday, which he reportedly hand-delivered to the president. “Please permit me by this letter to express my profound gratitude for having had the privilege to seek in each case how best to know, interpret, and defend the Constitution and the laws that must always conform to its mandates and promises.”
Reacting to the news, Trump called Kennedy a “great Justice” and said he would start the search for his replacement “immediately.”
Though he had sided with the four liberal justices on a number of issues during the Obama administration, in this term Kennedy had voted along with the conservatives. Earlier on Wednesday, the Supreme Court ruled against the public sector unions’ right to force non-members to pay dues. The ruling has been widely interpreted as a blow not just to organized labor, but to the Democratic Party it has traditionally supported. On Tuesday, the court upheld Trump’s travel ban on several countries, which Democrats argued was discriminatory against Muslims.
Kennedy’s departure means Trump will have the opportunity to nominate another judge in the mold of the originalist Neil Gorsuch, who once clerked for Kennedy. To approve Gorsuch against the unified opposition from Democrats, the Republican leadership scrapped the rule requiring 60 votes to overcome a filibuster.
“The Senate stands ready to fulfill our Constitutional obligations of advice and consent,” Majority Leader Mitch McConnell (R-Kentucky) said on Wednesday. “It’s important that President Trump’s nominee be treated fairly and not subjected to personal attacks."
McConnell said the Senate would vote on Kennedy’s replacement “this fall,” presumably before the November midterm elections if not before the Supreme Court convenes for the next term in October.
If the next justice does not get approved before January and Democrats somehow gain a majority in the Senate, they might be able to block Trump’s appointment and leave the bench short a justice and evenly divided. The court has been in this position before, when the Republican majority refused to vote on President Barack Obama’s nomination of Merrick Garland to the Supreme Court in 2016, following the death of Justice Antonin Scalia.
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