The Kennedy Era Comes to a Close: The “Swing” Justice Announces His Retirement

Shaun Salmon | July 16, 2018

Supreme Court Justice Anthony Kennedy announced his retirement at the end of June, sending shockwaves through the country (and also through Twitter). For better or worse, Kennedy was the famed swing vote of the Court, checking the power of Presidents and Congresses - receiving both praise and criticism from the public - on both the right and left sides of the political aisle. His unique role on the Court is rooted in the fact that while most Justices are predictable and generally rule consistently with one particular viewpoint of a case, Kennedy “sees both sides.” His retirement puts the second opening on the bench in about as many years, and will almost undoubtedly result in a much more conservative high court (see more about Trump’s new nominee here).

Before the (mostly) beloved Justice says goodbye this month, here’s a look at some of the most well-known Supreme Court decisions that Kennedy was responsible for as the swing voter:

Boumediene v. Bush, 2008
Determining that the language of the Constitution granted the Guantanamo Bay prison detainees the right to seek habeas corpus, Kennedy swung to the left in Boumediene. Delivering the opinion of the Court, Kennedy wrote “in considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, the courts must accord proper deference to the political branches. However, security subsists, too, in fidelity to freedom's first principles, chief among them being freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.”

Burwell v. Hobby Lobby, 2014

Joining Alito’s opinion of the Court, Kennedy’s vote was instrumental in holding that the United States Department of Health and Human Services’ (HHS) demand that three closely held corporations provide health-insurance coverage for methods of contraception that go against the sincerely held religious beliefs of the companies’ owners violated the Religious Freedom Restoration Act of 1993 (RFRA). The opinion determined that “RFRA’s text shows that Congress designed the statute to provide very broad protection for religious liberty” and “HHS had not proved that the mandate was the ‘least restrictive means’ of furthering a compelling governmental interest.” Most importantly, the majority concluded that “protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them.”

Citizens United v. Federal Election Commission, 2010

In the opinion of Citizens United, Kennedy focused explicitly on the exercise of First Amendment rights, determining for all intents and purposes that donations to political campaigns are free “political” speech.  Siding with the conservative majority, he wrote “Speech would be suppressed in the realm where its necessity is most evident: in the public dialogue preceding a real election. Governments are often hostile to speech, but under our law and our tradition it seems stranger than fiction for our Government to make this political speech a crime.” Regarding the First Amendment, he wrote that “speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people… For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence.” Another immensely quotable Kennedy line from Citizens United: “The First Amendment confirms the freedom to think for ourselves.”

Columbia v. Heller, 2008
A landmark decision for defenders of the Second Amendment, Heller struck down a Washington, D.C. law banning handguns on the basis that the law violated  Second Amendment rights. Kennedy joined the other more conservative judges in the decision, with an opinion written by the late Justice Scalia. Notably, the opinion stated: “We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”

Obergefell v. Hodges, 2015
Kennedy took the long road to marriage equality, beginning with Lawrence v. Texas in 2003 and United States v. Windsor in 2013, before delivering the opinion in ObergefellIn what is arguably the most heartstring-tugging and poetic opinion written by a Justice, Kennedy stated: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

Trump v. Hawaii, 2018

In this recent decision, Kennedy took a huge swing to the right, joining in Chief Justice Roberts’ opinion upholding the constitutionality of Trump’s travel ban. Reasoning for the decision included: “By its plain language, §1182(f) grants the President broad discretion to suspend the entry of aliens into the United States. The President lawfully exercised that discretion based on his findings - following a worldwide, multi-agency review - that entry of the covered aliens would be detrimental to the national interest. And plaintiffs’ attempts to identify a conflict with other provisions in the INA, and their appeal to the statute’s purposes and legislative history, fail to overcome the clear statutory language.”

Whole Woman’s Health v. Hellerstedt, 2015

The Supreme Court reaffirmed a woman’s constitutional right to abortion in Whole Woman’s Health.  Kennedy joined in Justice Breyer’s opinion, which stated plainly that “Texas seeks to force women to travel long distances to get abortions in crammed-to-capacity superfacilities. Patients seeking these services are less likely to get the kind of individualized attention, serious conversation, and emotional support that doctors at less taxed facilities may have offered. Healthcare facilities and medical professionals are not fungible commodities.” Additionally, the opinion noted that “the record contains sufficient evidence that the admitting-privileges requirement led to the closure of half of Texas’ clinics, or thereabouts. Those closures meant fewer doctors, longer waiting times, and increased crowding.” Lastly, the opinion made clear that the well-being of the women of Texas was crucial: “When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence on the record of such a case."

Constitutional law lovers and the general public alike recognize just how integral to these decisions the swing Justice was - and how different the new Court might look.

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About the Author

Written by Shaun Salmon

Shaun is the Director of Content at Lawline. She holds a JD with a certification in Intellectual Property/Entertainment & Sports Law from Seton Hall Law and is admitted to practice in New York and New Jersey. In her free time, she coaches a high school dance team and choreographs the school’s musical. She is also a passionate advocate for animals and strives to cultivate Animal Law programs, among her other endeavors with the company.


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