WASHINGTON — U.S. Supreme Court Justice Anthony Kennedy announced early Wednesday afternoon that he would retire, effective July 31.
“It has been the greatest honor and privilege to serve our nation in the federal judiciary for 43 years, 30 of those years on the Supreme Court,” Kennedy, who is stepping down July 31, said in a statement received by the Washington Post.
Kennedy was the swing vote in many cases including many LGBTQ rights decisions.
In 1996’s Romer v. Evans, he authored the Court’s first major pro-gay rights decision, invoking the 14th Amendment’s Equal Protection Clause in striking down a Colorado state constitutional amendment that prevented cities and towns from adopting their own bans on discrimination against gays, lesbians, or bisexuals.
Seven years later, in 2003’s Lawrence v. Texas, Kennedy wrote for a 6-3 court invalidating Texas’s ban on oral and anal sex between two men or two women. That decision overrode 1986’s Bowers v. Hardwick, a decision upholding Georgia’s sodomy law. In Lawrence, Kennedy tellingly did not use equal protection reasoning but instead found that any bans on consensual sexual behavior between adults, regardless of the genders involved, violate the due process clause’s guarantee of personal liberty. (This was similar to the reasoning the court had used in Roe and to invalidate bans on contraception in Griswold v. Connecticut.)
A decade later, in 2013, Kennedy wrote the 5-4 decision in United States v. Windsor overturning the federal Defense of Marriage Act on equal protection grounds. The decision required the federal government to respect and honor same-sex marriages at the state level, while still allowing states to ban same-sex marriage if they wished. And two years after that, in 2015’s Obergefell v. Hodges, he swept away bans on same-sex marriage altogether, ending with a stirring tribute to the value of marriage that’s become a mainstay of wedding readings in the years since.
He was also the swing vote in maintaining Roe v. Wade, keep access to abortion available in the United States. Since being named to the Supreme Court by Ronald Reagan, Kennedy has been a centrist, moderate voice on the very divided court. It will also give Trump a second justice to name to the country’s highest court.
“Personally, as the justice I clerked for, I just can’t imagine the Supreme Court without him,” Daniel Epps, an associate professor of law at the Washington University School of Law told The Hill. “But as a citizen with my own views of and preferences for the law, I also want him to stay because I think he’s likely to reach better decisions than whoever will likely replace him.”
Odds are Trump will nominate another conservative like Neil Gorsuch, giving conservatives a strong grip on the court that will last for generations.
The announcement got strong reactions from many liberals and progressives. News and culture Splinter nailed the general reaction with their headline about the news: “Fuck Fuck Fuck Fuck Fuck Fuck Fuck.”
Sen. Tammy Duckworth (D-Ill.) used Senate Majority Leader Mitch McConnell’s (R-Ky.) own words defending his decision to block the nomination of Merrick Garland to the Supreme Court to argue that Americans “should have a voice” in selecting the next justice, The Hill reported. McConnell held up the last court nomination for almost a year to ensure that a conservative would be named to the bench by Trump. A string of conservative decisions this week have proven that it worked for them.
— Tammy Duckworth (@SenDuckworth) June 27, 2018
Lambda Legal reacted strongly in a statement sent out to media Wednesday afternoon, noting that the court had just decided to affirm the ban on Muslims entering the country and weakening the power of public sector unions.
“The American people deserve to have a voice in the selection of their next Supreme Court Justice,” Rachel B. Tiven, Chief Executive Officer of Lambda Legal, said. “Therefore, not a single nominee by the Trump administration should get a hearing or a vote until after the November 2018 mid-term elections. Given everything happening in this country, and the fact that this President has worked to push through his own hateful agenda, the American people have a right to be heard before this critical decision.
“We cannot allow 40 more years of Trump’s values on the Supreme Court. Attempts by President Trump and Vice President Pence to use a new court vacancy as a way to deprive us of our dignity, to demean our community, or to diminish our status as equal citizens will be met with a chorus of opposition from civil rights leaders across the country. We have already seen the damage that has been done by the confirmation of Justice Gorsuch to the highest court in the land. We will not roll over and acquiesce to yet another attempt by this administration to tarnish the Supreme Court — one of our most revered institutions — with another nominee who shares their distorted view of the law.”