Supreme Court Justice Anthony Kennedy to Step Down

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by Christine Niles, M.St. (Oxon.), J.D.  •  ChurchMilitant.com  •  June 27, 2018   

Dems and Republicans go to war over High Court vacancy

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WASHINGTON (ChurchMilitant.com) - After more than a year of rumors that Supreme Court Justice Anthony Kennedy would be resigning, the 81-year-old justice announced Wednesday he'd be stepping down.

"For a member of the legal profession it is the highest of honors to serve on this court," Kennedy wrote in a letter to President Trump. "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."

Kennedy has served on the High Court for nearly three decades, making him the longest-serving member of the current Court, and was appointed by Republican President Ronald Reagan in 1988, after the failed confirmation of Judge Robert Bork (a turning point in the judicial confirmation process because of the viciousness of liberal congressmen and media attacks on Bork's highly regarded legal reputation). Former law clerks over the past year hinted at his impending resignation, and Kennedy's private visits with President Trump last year further fueled speculation.

The next appointment will have huge ramifications for reshaping the Supreme Court for decades to come. 

The new vacancy opens up a year after Trump nominee Neil Gorsuch was officially invested as an Associate Supreme Court justice, chosen to fill the seat of the late Justice Antonin Scalia, a conservative stalwart. The battle over Gorsuch was intense, with Democrats filibustering the nominee, forcing Republicans to choose the "nuclear option," changing the rules for cloture by reducing the necessary vote from a supermajority to a simple majority. After obtaining the needed votes to end the filibuster (55–45), the Senate voted to confirm Gorsuch.

Such congressional drama will ramp up this time around, as the stakes are much higher. Gorsuch's appointment merely restored the balance of the previous Court, with four reliably conservative judges against four reliably liberal judges, and one swing vote — Kennedy, unpredictable on abortion cases, predictable on gay rights.

Now that Kennedy's seat is up for grabs, Republicans and Democrats will go to war over the vacancy, as the next appointment will have huge ramifications for reshaping the Supreme Court for decades to come. 

As commentators have noted, Trump's election to the presidency was crucial in his recent Supreme Court victories, upholding the constitutionality of his travel ban as well as protecting the free speech rights of pro-lifers in California. In both cases, the majority narrowly won in 5–4 votes, the fifth vote only possible because of Gorsuch's appointment.

Image

Kennedy with mentor Gordon Schaber,

McGeorge School of Law, 1991.

During his campaign, President Trump promised he'd nominate originalist, pro-life judges, and offered a short list of 21 potential nominees. Gorsuch was among those named, and Trump may return to that list — which has now increased to 25 — to choose his next nominee. If such a nominee makes it past the judicial confirmation process and is voted onto the bench, conservatives may finally have a much-coveted majority on the High Court, and their longed-for aim of overturning Roe v. Wade — the 1973 case that's led to the legal slaughter of nearly 60 million unborn children in the United States — may finally be within reach.

Raised in an Irish Catholic family in Sacramento, California, Kennedy is a married father of three, and once worked closely with Reagan when he was California governor. Those close to Kennedy claim his pro-homosexual rulings (his major victory was authoring the majority opinion in Obergefell v. Hodges, the 2015 case that legalized gay marriage in all 50 states) are explained by the influence of former mentor Gordon Schaber, dean of McGeorge School of Law in Sacramento, who hired Kennedy in the 1960s as a teacher.

Schaber, rumored by many to be homosexual, became close friends with Kennedy, and decades later when Kennedy was nominated to the Supreme Court, Schaber would appear to testify on his behalf before the Senate Judiciary Committee. Although Schaber's influence cannot be confirmed, many speculate his mentorship played a large part in deepening Kennedy's sympathy towards homosexuals.

Court Cases

Kennedy has come to be known as the crucial swing vote in major abortion cases, although he has an entirely predictable record on gay "rights." Although he voted to uphold an abortion restriction in 1990 (Hodgson v. Minnesota), he joined the majority in affirming a right to abortion in Planned Parenthood v. Casey in 1992. He went the other way in 2000 by voting to uphold state laws banning late-term abortions (Stenberg v. Carhart), further shoring up his position in the 2007 case Gonzales v. Carhart by writing for the majority, and again upholding a law (this time federal) criminalizing partial-birth abortions. He was also in the majority in both cases upholding Obamacare.

Kennedy has taken the lead in promoting the homosexual agenda on the Supreme Court over the past several decades. He wrote the majority opinion in Romer v. Evans (1996), which struck down a Colorado constitutional amendment that prohibited recognizing homosexuals as a specially protected class. He characterized the measure as based on nothing more than "animus" towards gays.

In 1986, the Supreme Court ruled in Bowers v. Hardwick that a state statute that criminalized same-sex acts was constitutional. Unhappy with the ruling, Kennedy would have to wait 17 years before his personal vindication in the historic case Lawrence v. Texas (2003), which overturned Bowers and struck down a state anti-sodomy statute. Once again writing for the majority, he took the rare step of overturning Supreme Court precedent, writing, "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled." 

He authored the majority opinion in the major 2013 case United States v. Windsor, which struck down a portion of the federal Defense of Marriage Act defining marriage as between a man and a woman. The case became the linchpin for multiple rulings overturning state same-sex "marriage" bans. 


 

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