Justice Kennedy Retires: Initial Considerations for Congress

Legal Sidebari

Justice Kennedy Retires: Initial

Considerations for Congress

June 28, 2018

On June 27, 2018, hours after the Supreme Court released its final opinions for the term, Justice Anthony

M. Kennedy, announced that, effective July 31, 2018, he would retire from active service as an Associate

Justice of the Supreme Court. Nominated to replace Justice Lewis Powell in 1987, Justice Kennedy has

served on the Court for more than three decades. Like his predecessor, Justice Kennedy has often been

referred to as the Court’s “swing” vote. Justice Kennedy has pushed back against such a moniker,

declaring in a 2015 speech that “[t]he cases swing, I don’t.” But his central role on the Court in recent

decades, and in particular in the Roberts Court era, cannot be overstated. Since the Roberts Court began in

2005, Justice Kennedy has been the justice who cast his votes most often with the majority of the Court in

all but three terms. (Chief Justice Roberts edged out Justice Kennedy in the most recent term and the

October 2007 term, while Justice Breyer was the most frequent justice in the majority during the October

2014 term). This Sidebar highlights various areas of law in which Justice Kennedy—either by authoring

or joining a Supreme Court opinion—proved consequential to the trajectory of Supreme Court

jurisprudence. In so doing, this post provides a broad overview of key legal issues Congress (and, more

specifically the Senate, through its advice and consent role) may wish to consider as it reflects on Justice

Kennedy’s jurisprudence and how his eventual successor might shape the future of the Court, Congress,

and the nation as a whole.

During his thirty years on the Court, Justice Kennedy encountered nearly every major flashpoint for

modern American legal debate—from the powers of the federal government vis-à-vis the states, to

separation-of-powers disputes, to key civil liberties issues. And on nearly all of these issues, Justice

Kennedy seemed to be at the epicenter of the discussion because of his consequential role in many cases’

outcomes. Some examples:

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Abortion: Justice Kennedy co-authored the joint plurality opinion in the 1992 decision

Planned Parenthood of Southeastern Pennsylvania v. Casey, which upheld the “central

holding” of Roe v. Wade, recognizing a woman’s right to terminate a pregnancy, while

also recognizing that state restrictions may be permissible if they do not place an undue

burden on a woman’s ability to terminate a pregnancy prior to the fetus’s viability. And in

more recent years, Justice Kennedy joined the Court’s opinion in Whole Woman’s Health

v. Hellerstedt, striking down two Texas laws on grounds they imposed an undue burden

on a woman’s ability to seek an abortion. At the same time, Justice Kennedy authored the

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majority opinion in Gonzales v. Carhart, upholding the federal Partial-Birth Abortion Ban

Act of 2003.

Affirmative Action: Following Justice Sandra Day O’Connor’s retirement in 2005,

Justice Kennedy proved to be a critical vote in cases considering the legality of raceconscious education programs. Justice Kennedy concurred in the judgment of the 2007

decision, Parents Involved in Community Schools v. Seattle School District No. 1, in

which the Court invalidated school assignment plans in two school districts that partially

relied on race to determine which schools children in the districts could attend. Justice

Kennedy, however, recognized that race can play some role in state education policy,

upholding the University of Texas at Austin’s race-conscious admission policy in the

2016 ruling in Fisher v. University of Texas at Austin.

Death Penalty: Relying on the Eighth Amendment’s prohibition against the infliction of

cruel and unusual punishment, Justice Kennedy authored or voted for opinions that

limited the scope of the death penalty. For instance, Justice Kennedy authored the

majority opinion in Roper v. Simmons, prohibiting the imposition of capital punishment

against juvenile offenders, and Justice Kennedy joined the majority in Atkins v. Virginia,

barring executions of the cognitively disabled. But Justice Kennedy declined to join

opinions from colleagues who concluded that the Eighth Amendment wholly prohibits

the imposition of the death penalty, and he more recently joined narrow majorities of the

Court in several cases rejecting challenges to particular states’ methods of execution.

Environmental Law: Justice Kennedy has been at the center of several major

environmental law matters before the Court. For instance, in 2007 he joined the majority

opinion in the Supreme Court’s 5-4 ruling in Massachusetts v. EPA, holding that the

Environmental Protection Agency (EPA) had the authority to regulate greenhouse gases

under the Clean Air Act. In 2015, Justice Kennedy joined with the more conservative

wing of the Court to comprise the majority in Michigan v. EPA, which invalidated certain

EPA rules regulating power plants because the agency failed to consider the costs of

compliance when promulgating those rules.

Freedom of Religion: Justice Kennedy has played a central role in freedom of religion

debates on the Court. He joined the Court’s 1990 landmark ruling in Employment

Division v. Smith, holding that laws of general applicability require minimal scrutiny

against free exercise claims. At the same time, Justice Kennedy authored several opinions

recognizing the role of the Court in policing government impositions on the free exercise

of religion (e.g., Church of the Lukumi Babalu Aye, Inc. v. Hialeah; Masterpiece

Cakeshop v. Colorado Civil Rights Commission). Justice Kennedy also joined the

majority opinion in Burwell v. Hobby Lobby Stores, Inc., which held that a regulation

requiring certain employers to provide cost-free contraceptives to their employees

violated federal religious protection laws because it burdened the religious liberty of

closely held, for-profit corporations. In so doing, he authored a concurrence emphasizing

both the interests of religious objectors and the government’s interest in facilitating

insurance coverage for contraceptives. Justice Kennedy likewise staked out a middle

ground in the Court’s Establishment Clause cases, declining in Lee v. Weisman to curtail

restrictions on school prayer established by the Court in prior cases, but holding that the

practice of legislative prayer was permissible in Town of Greece v. Galloway.

Freedom of Speech: The Roberts Court has, in the view of some observers, been the

“most speech-protective Supreme Court in memory,” particularly on matters involving

the confluence between speech and the expenditures of private entities. That reputation is

due in large part to Justice Kennedy. Most notably, Justice Kennedy was the author of the

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2010 opinion in Citizens United v. FEC, which held that “no sufficient governmental

interest justifies limits on the political speech of nonprofit or for-profit corporations.”

Kennedy also authored or joined several recent opinions increasing protections for

commercial speech. And on the day he announced his retirement, Justice Kennedy joined

a majority of the Court to strike down on free speech grounds a state law compelling

public employees to pay certain agency fees to a union. Nonetheless, Justice Kennedy has

authored several critical opinions recognizing the limits of the First Amendment’s Free

Speech Clause, including landmark decisions concerning federal regulations of cable

television and public employee speech.

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National Security: The Court has considered numerous cases implicating national

security matters in recent decades, with Justice Kennedy typically casting the deciding

vote. This term, he was part of a 5-4 majority that accorded broad deference to

presidential security determinations when upholding the Trump Administration’s “Travel

Ban,” which barred certain foreign travelers from entering the United States because of

security concerns. He also authored or joined Court opinions that, partially out of

deference to the political branches’ judgment in national security matters, dismissed or

effectively foreclosed various lawsuits related to counterterrorism policies pursued in the

aftermath of the September 11, 2001 terrorist attacks. While Justice Kennedy joined a

majority of justices in Hamdi v. Rumsfeld to recognize the government’s ability to detain

indefinitely “enemy combatants,” including U.S. citizens, captured in post-9/11

hostilities, Justice Kennedy also joined or authored opinions recognizing limits to the

Executive’s wartime authority in several opinions. Perhaps most notably, he authored the

Court’s landmark opinion in Boumediene v. Bush, which held that the constitutional writ

of habeas corpus extended to foreign nationals held as enemy belligerents at the

Guantanamo Bay detention facility, enabling them to challenge their detention in habeas

proceedings.

Power of Congress: Justice Kennedy joined or wrote several opinions during the

Rehnquist and Roberts Court eras that recognized limitations on Congress’s Commerce

Power (e.g., United States v. Lopez, United States v. Morrison); restricted Congress’s

powers under the reconstruction amendments (e.g., City of Boerne v. Flores; Shelby

County v. Holder); established the anti-commandeering doctrine prohibiting

congressional directives to state executive and legislative officials (e.g., New York v.

United States; Printz v. United States; Murphy v. NCAA); and limited Congress’s ability

to subject state governments to monetary damages remedies (e.g., Seminole Tribe of

Florida v. Florida; Alden v. Maine). Notwithstanding these decisions, Justice Kennedy

joined Court opinions recognizing Congress’s power under the Commerce Clause to

regulate certain intrastate activities with tangential connections to interstate commercial

activities. For example, Justice Kennedy voted with the majority in Gonzales v. Raich to

uphold the application of the federal Controlled Substances Act to the local cultivation of

medicinal marijuana and recognizing Congress’s power to require the civil commitment

of dangerous sexual predators in United States v. Comstock.

Second Amendment: Justice Kennedy was part of the five-justice majority that

concluded in District of Columbia v. Heller that the Second Amendment protected an

individual (as opposed to collective) right to bear and keep arms. Two years later, he was

part of the five-justice bloc that held in McDonald v. City of Chicago that the Second

Amendment applied to the actions of state and local governments through the Fourteenth

Amendment. Nonetheless, in the wake of Heller and McDonald, Justice Kennedy has

declined to join other justices who have called for the Supreme Court to consider Second

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Amendment challenges to (and potentially invalidate) state laws imposing waiting

periods for purchasing firearms or restricting the right to carry firearms in public.

Sexual Orientation: Justice Kennedy authored several Court opinions concerning state

and federal laws differentiating between persons based on sexual orientation, in which he

struck down state or federal laws because the laws were either enacted by reason of

animus and violated equal protection principles (e.g., Romer v. Evans; United States v.

Windsor) or invaded privacy rights protected by the substantive component of the

Fourteenth Amendment’s Due Process Clause (e.g., Lawrence v. Texas). In the landmark

2015 ruling in Obergefell v. Hodges, Justice Kennedy, on behalf of a five-member

majority, invalidated state laws that recognized marriage as being exclusively between a

man and a woman. Nonetheless, Justice Kennedy identified limits to state public

accommodation laws which seek to protect sexual minorities from discrimination, when

those laws were applied in a manner that was in tension with the First Amendment rights

of religious or moral objectors (e.g., Boys Scouts of America v. Dale; Masterpiece

Cakeshop v. Colorado Civil Rights Commission).

As Justice Byron White once noted, “every time a new justice comes to the Supreme Court, it’s a

different court.” That adage could be particularly true of Justice Kennedy’s successor given Justice

Kennedy’s outsized role on the Roberts Court. Article II of the Constitution provides the President with

the power to appoint judges to the Supreme Court, with the Senate’s advice and consent. It is expected

that President Trump will nominate one of the 25 individuals he previously placed on his “Supreme Court

List” to fill Justice Kennedy’s seat. Reports suggest a vote on the nominee may occur in early autumn

2018.

As with past vacancies on the High Court, in the coming weeks and months, CRS will be publishing more

products examining the vacancy created by Justice Kennedy’s retirement and President Trump’s nominee

to fill his seat on the Court. And on June 29, 2018, a CRS seminar will be held in HVC-215 (Gabriel

Zimmerman Meeting Room), U.S. Capitol Visitor Center at 10 a.m. examining the latest term of the

Court and considering Justice Kennedy’s retirement. For more information, see CRS.gov.

Author Information

Andrew Nolan

Section Research Manager

Michael John Garcia

Acting Section Research Manager

Congressional Research Service

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Disclaimer

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