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Justice Kennedy's retirement could pave way for end of abortions and more protections for gun owners

By David G. Savage • Updated Jun 27, 2018 at 4:36 PM

WASHINGTON — Justice Anthony M. Kennedy, the Supreme Court centrist who for a generation has cast the deciding vote in the biggest cases, plans to retire, giving President Donald Trump a chance to shift the court sharply to the right.

In a letter to Trump, the 81-year-old Kennedy wrote: "For a member of the legal profession, it is the highest of honors to serve on this court. Please permit me by this letter to express my profound gratitude for having had the privilege to seek in each case how best to know, interpret and defend the Constitution and the laws that must always conform to its mandates and promises."

Kennedy’s decision to step down, announced Wednesday and effective July 31, offers conservatives the opportunity they have long sought to lock in a reliable five-member conservative majority on the high court. And for them, it comes at an ideal time, since Republicans control the Senate and have voted in unison to confirm Trump’s conservative court nominees.

With five solid conservatives, the justices could repeal the right to abortion, expand protections for gun owners, narrow gay rights and strengthen the president’s power to arrest and deport immigrants who are here illegally.

“Moments like these are why pro-life Americans elected President Donald Trump,” said Mike Gonidakis, president of Ohio Right to Life. “He has the historic opportunity to add a justice who will serve as the fifth pro-life vote on the court. Ohio Right to Life's goal has always been to overturn Roe v. Wade and to see the end of abortion, which has killed 60 million American children in the last 45 years. This is a historic moment, and we hope and expect President Trump will appoint a justice who fits the mold of Justice Neil Gorsuch.”

The leading candidate to replace Kennedy is Judge Brett Kavanaugh, a staunch conservative and a former law clerk for Kennedy. He served as a top deputy to former Independent Counsel Kenneth Starr in the drive to impeach President Bill Clinton in the late 1990s. He then served as a White House lawyer for President George W. Bush, who appointed him to the U.S. Court of Appeals for the District of Columbia.

“Justice Kennedy has served with honor and distinction for three decades on our nation’s highest court,” U.S. Rep. Bob Latta (R-Bowling Green) said. “I thank him for his years of service and wish him the best in his upcoming retirement. As we look towards the next justice, I encourage President Trump to nominate an individual with a history of upholding the Constitution and believes in interpreting the law, not making the law.”

Since ascending to the high court 30 years ago, Kennedy has been its pivotal figure, splitting his votes between its conservatives and liberals in a way that has made him arguably the court’s most influential justice. For years, his presence as a moderate has prevented both sides from pressing too far in one direction.

More often than not, Kennedy, an appointee of President Ronald Reagan, has sided with the conservatives. He wrote the 5-4 decision in the 2010 Citizens United case that opened the floodgates for big money to flow into political races. Earlier, he played a key role in the 5-4 decision in Bush v. Gore that ended the vote recount in Florida and preserved George W. Bush’s narrow win in the presidential race of 2000.

But Kennedy also led the way for the recognition of gay rights. He spoke for the 5-4 majority in 2015 to declare that same-sex couples had a right to marry nationwide.

"The Supreme Court is why many people voted for President Donald Trump," said Mat Staver, founder and chairman of Liberty Counsel. "With Justice Kennedy's retirement, the next justice will have a huge impact on the future of America."

Kennedy’s departure puts into doubt the fate of the Roe vs. Wade decision and the right of pregnant women to choose abortion. Conservatives have never accepted that ruling as legitimate, and Republican lawmakers continue to pass state measures that would outlaw nearly all abortions.

"If Justice Kennedy is replaced with a person who is faithful to the original text and meaning of the Constitution, then it is just a matter of time before several horrible decisions are reversed, including abortion and same-sex marriage," Staver said. "Justice Kennedy's replacement marks a turning point in America. It is beyond time for the Court to reclaim its prestige of being a neutral interpreter of the Constitution rather than an activist political branch.”

In 1992, Kennedy surprised his fellow conservatives when he switched sides in a pending abortion case and joined with former Justices Sandra Day O’Connor and David Souter to uphold the right to abortion as a matter of precedent.

But if Trump and the Republican-controlled Senate appoint a solid conservative to fill Kennedy’s seat, the high court could cut back on the right to an abortion or overturn it entirely.

“I’m already very troubled by the actions of the Supreme Court in just the last few weeks — taking away workers’ rights, voters’ rights and women’s rights,” Sen. Sherrod Brown (D-Ohio) said. “I hope the President will take this opportunity to bring Americans together by appointing someone with a well-respected record that all sides can support.”

Kennedy arrived at the court in February 1988 after a titanic battle in the Senate between Reagan and Senate Democrats led by Sens. Ted Kennedy and Joe Biden, then chairman of the Judiciary Committee. It began in June 1987 when Justice Lewis Powell, the swing vote of his era, announced his retirement.

Despite a warning from Biden, Reagan nominated Judge Robert H. Bork, a conservative who had derided the Roe decision and several of the court’s key civil rights rulings. After televised hearings in September, the Senate rejected Bork on a 42-58 vote.

Reagan then chose a younger conservative, Judge Douglas Ginsburg, but Ginsburg was forced to withdraw after reports that he smoked marijuana regularly when he was a law professor. The news was especially awkward because Nancy Reagan, the president’s wife, had popularized the slogan “Just Say No” in an anti-drug campaign.

The White House was shaken by the two defeats. Reagan then turned to a young lawyer he had known from Sacramento. Kennedy’s father was a well-liked lobbyist at the state Capitol, and young “Tony” Kennedy had offered legal advice to then-Gov. Reagan’s team on several ballot measures.

In 1975, Reagan recommended Kennedy, then just 38 years old, for a seat on the 9th Circuit Court of Appeals. And 12 years later, Reagan turned to Kennedy for the vacant Supreme Court seat. He won unanimous confirmation from the Senate.

“I’m grateful for Justice Kennedy’s many years of service on the Supreme Court and wish him well in his retirement,” U.S. Sen. Rob Portman (D-Ohio) said. “I look forward to learning who President Trump plans to nominate and thoroughly assessing his or her qualifications for this important role. The job of a Supreme Court justice is to fairly and impartially apply the law and to protect the rights guaranteed by the Constitution, not to advance public policy goals by legislating from the bench. The president and Congress must now work together to do the important work of putting a highly qualified person in place who understands this role.”


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