What Would Justice Anthony Kennedy's Resignation Mean for America?
06-27-2017
CBN News John Reid
Rumors have intensified of Supreme Court Justice Anthony Kennedy’s imminent retirement. But such rumors raise questions as to the implications of the Court’s only swing seat being vacated.
A prominent tenet to the 2016 presidential election was the incumbent’s influence on the judiciary. With the High Court’s three eldest jurists now aging 79-84, parties were concerned that the next president would replace a third of the bench. This concern became even more crucial upon the unexpected passing of the late Justice Antonin Scalia, who was recently replaced by Justice Neil Gorsuch.
Gorsuch holds conservative values akin to his predecessor and thus makes no dramatic difference in the Court’s proportions. However, the political left may fear that President Trump will appoint a less neutral, more conservative justice to replace Kennedy, inevitably causing a shift in the Court’s jurisprudence.
Appointed in February of 1988 by president Ronald Reagan, Kennedy has taken a strictly juristic approach to constitutional interpretation. Kennedy has ruled across a wide spectrum of jurisdictive narratives during his judicial tenure. Here is how Kennedy has ruled among the more incendiary topics introduced by the Court in recent years:
Religious Liberties and LGBT Rights
Kennedy has reputably leaned conservative in cases of religious liberties but liberal in cases of homosexuality. In the recent Trinity Lutheran Church of Columbia, Inc. v. Comer Kennedy joined the 7-2 majority, a victory for the local church and religious liberties in general. However, Kennedy has defended homosexuality more times than not. Kennedy took the liberal position in Romer v. Evans (’96), United States v. Windsor (’13), Obergefell v. Hodges (’15) and others. In an anomaly decision, he opined that the Boy Scouts of America do have the right to ban homosexuals from being scoutmasters in Boy Scouts of America v. Dale (’00).
Kennedy has reputably leaned conservative in cases of religious liberties but liberal in cases of homosexuality. In the recent Trinity Lutheran Church of Columbia, Inc. v. Comer Kennedy joined the 7-2 majority, a victory for the local church and religious liberties in general. However, Kennedy has defended homosexuality more times than not. Kennedy took the liberal position in Romer v. Evans (’96), United States v. Windsor (’13), Obergefell v. Hodges (’15) and others. In an anomaly decision, he opined that the Boy Scouts of America do have the right to ban homosexuals from being scoutmasters in Boy Scouts of America v. Dale (’00).
A contentious variable to consider: The Court just announced that they will hear the case of Denver baker, Jack Phillips, who refused to customize a cake for a gay wedding and has since been ruled against by the state of Colorado. This case involves both religious liberties and LGBT rights but Kennedy will likely not be on the bench when the Court hears the case this fall. It is debatable whether Kennedy’s replacement will be appointed and confirmed before this case, and if not then Phillips risks a SCOTUS tie, which would defer to the municipal ruling.
Abortion
In Hodgson v. Minnesota (’90), Kennedy supported a mandate that minors inform both parents before having an abortion.
In Planned Parenthood v. Casey (’92), Kennedy joined the pluralistic majority citing Roe v. Wade as precedent.
In Stenberg v. Carhart (’00), Kennedy dissented a ruling that struck down a Nebraska law criminalized partial-birth abortions.
In Hodgson v. Minnesota (’90), Kennedy supported a mandate that minors inform both parents before having an abortion.
In Planned Parenthood v. Casey (’92), Kennedy joined the pluralistic majority citing Roe v. Wade as precedent.
In Stenberg v. Carhart (’00), Kennedy dissented a ruling that struck down a Nebraska law criminalized partial-birth abortions.
Gun Control
Kennedy joined the majority in two cases that affirmed the 2ndAmendment to be applied to domiciled residence: Disctrict of Columbia v. Heller (’08), which struck down the ban on handguns in Washington D.C., and McDonald v. Chicago (’10), which ruled that the 2nd Amendment is applied to the States through the Due Process Clause of the 14thAmendment.
Kennedy joined the majority in two cases that affirmed the 2ndAmendment to be applied to domiciled residence: Disctrict of Columbia v. Heller (’08), which struck down the ban on handguns in Washington D.C., and McDonald v. Chicago (’10), which ruled that the 2nd Amendment is applied to the States through the Due Process Clause of the 14thAmendment.
Free Speech
In the 1989 case of Texas v. Johnson, Kennedy delivered a famous opinion that diplomatically merged his detest for flag burning with his conviction that it be a protected right:
In the 1989 case of Texas v. Johnson, Kennedy delivered a famous opinion that diplomatically merged his detest for flag burning with his conviction that it be a protected right:
"It is poignant but fundamental that the flag protects those who hold it in contempt."
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