Donald Trump is considering which of his conservative picks for the supreme court he will to nominate to take the seat vacated by Justice Anthony Kennedy this week. Whoever is chosen, their appointment, if approved, could upend legal precedent on key issues where Kennedy, arguably a moderate conservative, had been counted as a crucial swing vote.
After Kennedy’s retirement, perhaps of greatest concern for the left is the question mark that now hovers over Roe v Wade, the landmark 1973 supreme court case that recognized a woman’s constitutional right to an abortion.
During a pivotal reconsideration of the rights secured by Roe v Wade in 1992, Kennedy upset the anti-abortion movement by casting the crucial vote to uphold a woman’s right to choose. He defended it again 2006.
Trump’s shortlist has more conservative legal minds, many of whom have been open about their anti-choice views. William Pryor, an appeals judge on the 11th circuit, has previously called Roe v Wade the “worst abomination in the history of constitutional law”.
Kennedy has continued to evolve on affirmative action, which advances members of groups known to have experienced discrimination. Kennedy cast the fifth vote in the 2007 supreme court decision against Seattle and Louisville plans to use race to account for diversity and integration in schools. In 2016, however, Kennedy’s vote proved pivotal when the court upheld the University of Texas’s affirmative action programs, which used race as one of its admissions factors.
Trump’s justice department has sided with a group suing Harvard for allegedly discriminatory admissions process, which might signal the sort of perspective on affirmative action he could expect his nominee to hold.
Kennedy might be best known for penning the majority opinion in Lawrence v Texas in 2003, which argued for respect for the private lives of a gay couple and subsequently all couples, same-sex or not. He followed that up with writing the majority opinion of the court in Obergefell v Hodges providing the legal basis for same-sex marriage.
But in 2000, Kennedy cast his vote upholding the right of Boy Scouts of America to deny scoutmastership to gay men, and also penned the opinion in the more recent Masterpiece Cakeshop case, which affirmed the right of the baker to refuse to bake a cake for a gay couple.
Observers expect Trump’s nominee to trade in Kennedy’s uncertainty for a more steadfast position against LGBT rights. The current fifth circuit court judge and former Texas supreme court judge Don Willett, who is on the shortlist, mocked same-sex marriage in a tweet that said: “I could support recognizing a constitutional right to marry bacon.”
Civil rights and national security
On two separate occasions, Kennedy demonstrated his penchant for retaining the writ of habeas corpus, the right for a person in detention to challenge that detention if they deem it to be unlawful. In the case of Rasul v Bush he concurred with the majority that Congress should ensure that Guantánamo prisoners can petition for habeas corpus. And while America was deep in the throes of its new war on terror amid a changing landscape on national security law, Kennedy wrote the majority opinion of 2008’s Boumediene v Bush, assuring the provision of habeas rights to terrorists in indefinite custody.
And when a reporter asked “Would you try to get the military commissions – the trial court there – to try US citizens?” Trump stated: “I know that they want to try them in our regular court systems, and I don’t like that at all.”
In 2013, civil rights organizations decried the court’s majority opinion in Shelby county v Holder, which limited the federal oversight of states that historically exhibited discrimination in voting. Again, Kennedy cast the pivotal fifth vote as Chief Justice Roberts, and wrote optimistically “our country has changed”, placing the onus on Congress to pass legislation to tackle the issue.
Trump is likely to nominate another justice with judicial philosophies favorable to corporations. Citizens United v FEC, the 2010 decision that gave rise to Super Pacs, has had perhaps one of the most significant impacts on America’s electoral system and will probably continue to do so, with Trump’s next nominee. America has Justice Kennedy to thank for penning that decision. As Kennedy put it, “an independent expenditure is political speech”.
And just moments before his retirement was announced on Wednesday, unions decried the court’s reasoning in Janus, that collecting fees from non-union members to aid collective bargaining violates the first amendment.
Proponents of criminal justice reform should not expect much to change. “I am the law and order candidate,” Trump routinely reminded his supporters during his 2016 campaign. Trump’s next nominee will sit in the chair of the man who found that the death penalty is acceptable if there is no mitigating evidence, and that the government bears no responsibility in situations of abuse in private prisons.