Justice Anthony Kennedy’s Legacy: Centrist to a Fault?

Supreme Court Vacancy

This article was originally published by Civics Nation.

Justice Anthony Kennedy cemented his legacy on June 27.

The last week of June marked the end of many things: The end of a contentious Supreme Court term. Kennedy announcing the end of his 30-year career as a Supreme Court Justice. And, maybe, the end of political centrism. At least on the bench.

This term, the Supreme Court has heard many divisive cases, including cases on Illinois’ unions, California’s anti-abortion pregnancy centers and, most notably, Trump’s travel ban.

Since Justices typically last decades at the bench, Kennedy’s retirement, beginning July 31, hands President Trump a rare opportunity to nominate a second conservative Justice in just over the 500-day mark of his presidency.


Civics Lesson: Supreme Court Vacancies
Supreme Court Vacancy
Image courtesy of kenudigit via Flickr.

Supreme Court vacancies are a big deal. Following Justice Scalia’s death on Feb. 13, 2016, Republican Senators blocked Obama’s nomination until his presidency was over.

The Senate confirmed Trump’s nominee, Neil Gorsuch, 422 days after Scalia’s death (the longest vacancy in the history of the nine-seat high court and the longest overall vacancy since 1830). According to Pew Research Center, the longest Supreme Court vacancy in the history of the United States was 841 days.


“[Kennedy’s] departure is a triumph for Mr. Trump,” The New York Times reports. “Naming justices and judges is easier than forging legislative compromises, and Mr. Trump understands that his judicial appointments represent a legacy that will long outlast his presidency.”

The Times also notes that the president has consistently praised Justice Kennedy, even while at the same time dishing out scathing criticism to the rest of the court. Some believe this praise to be part of a larger strategy to woo Kennedy into retiring after this year’s session, thus cementing the president’s campaign promise to change the political makeup of the Supreme Court.

Justice Kennedy also shares a key connection to President Trump: his son. Justin Kennedy was the global head of real estate capital markets for Deutsche Bank and lent President Trump over $1 billion at a time when almost every other bank refused to do business with him. Incidentally, this is also the same time period Deutsche Bank was participating in a money laundering scandal that centered on its Moscow subsidiary and filtered billions to its Western offices, including New York.

Trump’s upcoming nomination is likely to give the nine-seat court a solid five conservative Justice majority.

Though the Supreme Court is supposed to be apolitical, it’s easy to see patterns in votes that showcase the Justices political ideology. Justice Kennedy, though, was a wild card. He was seen as a swing voter on many rulings throughout his career—including his historic vote in the Obergefell v. Hodges case, legalizing same-sex marriage.

Pendulums swing the other way, too. On June 27, he was the deciding vote in favor of Trump’s travel ban. He released a concurring opinion to explain his rationale. In Kennedy’s carefully worded statement, it becomes clear he sees himself as a pillar of centrism in a divided America.

“There are numerous instances in which the statements and actions of government officials are not subject to judicial scrutiny or intervention,” Kennedy said, in reference to Trump’s animus toward Muslims while marketing the travel ban.

“That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects,” Kennedy added.

Kennedy took direct aim at the xenophobic sentiment surrounding the travel ban but not the ban itself: “An anxious world must know that that our government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”

On a closer read, we can see Kennedy’s careful toeing of the line. He wants to measure the case on a micro level, not judging it based on Trump’s rhetoric. He wants to stray away from legislating from the bench. He wants to find a common ground, even when the middle is still far to the right.

In the end, that nuance will likely be lost. In the tides of history, his final deciding vote will speak louder.

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