Justice Kennedy Retires: Initial Considerations for Congress

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:
 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
Congressional Research Service
https://crsreports.congress.gov
LSB10159
CRS INSIGHT
Prepared for Members and
Committees of Congress

Congressional Research Service
2
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 race-
conscious 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

Congressional Research Service
3
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.
 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

Congressional Research Service
4
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
Michael John Garcia
Section Research Manager
Acting Section Research Manager

Congressional Research Service
5

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.
LSB10159 · VERSION 3 · NEW