Maya Sen on Anthony Kennedy’s Retirement

Supreme Court Justice Anthony Kennedy announced his retirement from the country’s top court Wednesday (June 27). Kennedy has long been a crucial swing vote on key Supreme Court decisions, and his replacement has the opportunity to significantly change the ideological makeup of the court. Maya Sen, associate professor of public policy at Harvard Kennedy School, has researched the political leaning of courts and is an expert Supreme Court watcher. We asked her about the impact Kennedy’s retirement will have on the court and the country.

Q: What’s your reaction to the announcement that Kennedy is retiring?
Maya Sen: Some surprise, but not entirely surprised. There were rumors going around for at least one or two years since Trump was elected, that Kennedy was considering retirement, and some of the things he’d written in some of the opinions in the last week had indicated as such. So I don’t think anybody who follows the Supreme Court closely was very surprised at the announcement. Even so, this is an earthquake for the Supreme Court. This is an institution that changes very slowly, and Kennedy is a really important player on the Supreme Court.
Q: How could this alter the ideological balance of the court?
Maya Sen: This is why Kennedy’s retirement is such an earthquake. Kennedy occupies what we would call the median position on the Supreme Court. Colloquially, what that means is that he’s basically the swing justice. For the most part, he votes with the conservatives, but every so often he votes with the liberals. And he votes with the liberals in cases that are particularly important, and without Kennedy, liberals can’t win at the Supreme Court. The reason why he occupies this median position is that he’s the ideologically most moderate of the conservatives. Now, with his retirement, Trump controlling the White House and Republicans controlling the Senate, they can nominate and confirm a candidate that’s very much to their liking. We’ve seen this in the past, with candidates like John Roberts, Sam Alito, Neil Gorsuch—judges who are extremely conservative. So, we might assume that Kennedy’s replacement will be someone who looks quite similar to Neil Gorsuch. That would shift the court’s epicenter significantly to the right.
Q: What were some of the areas where Kennedy sided with the more liberal judges?
Maya Sen: Probably the best example is LGBT rights. Kennedy had a particular reputation for being more supportive of LGBT rights and wrote a few of the influential opinions in that area. That will no longer happen moving forward. It’s likely that reproductive rights cases will also be impacted. I think the overall takeaway is that it would be very, very hard to expect a five to four majority in favor of the liberal side. On these highly politically charged cases where Kennedy was often the swing, it would be up to someone like John Roberts to side with the liberals. And he’s significantly more conservative than Justice Kennedy. So, in cases like gerrymandering, the best that progressives and liberals could have hoped for was a five to four opinion with Kennedy being the swing in favor of a kind of cracking down on partisan gerrymandering. That is no longer a possibility with Kennedy retiring. You know, if I were a progressive attorney, I would probably not want to see my case go up to the court. It’s not going to be a favorable court for voting rights sorts of cases.
Q: How will this change legal strategies?
Maya Sen: Well, it’s going to change legal strategy in a number of ways. It’s going to change strategic posturing. Do you want your case to go up to the Supreme Court when the Supreme Court’s going to be a solid five to four conservative majority? The other way in which it’s going to change things is that petitioners to the Supreme Court—lawyers making the pitch to the Supreme Court—would often write their arguments specifically for Anthony Kennedy. They would read his previous opinions and they would try to shape their argument so as to sway him because he was the swing justice. And they no longer have to do that or can do that. Instead, they’re going to actually be writing for John Roberts, who is now assuming that median justice position on the Supreme Court, and he’s much more conservative. So, it’s going to change actually the language that lawyers even use when they’re crafting their arguments to the Supreme Court.
Q: Who do you think President Trump is likely to appoint to the bench?
Maya Sen: I suspect that Trump is going to nominate someone very similar to Neil Gorsuch. Gorsuch is probably behind Justice Thomas, the most conservative member of the court, and I think his nomination made a lot of people who are Trump supporters and traditional Republicans very pleased. So, a well-respected but very, very conservative appeals court judge.
Q: How would a nomination, or a confirmation fight like that play out in the Senate?
Maya Sen: Does Senate Majority Leader Mitch McConnell want to try to rush things through before the midterm elections, or does he want to wait, maybe use this as a way to rally the Republican base to turn out and vote? If he goes with the former and tries to push this along before the midterms, I think it will be a very comfortable process. Democrats will be upset because they’ll cite the ghost of Merrick Garland and claim that the people need to have a say, but I don’t think Mitch McConnell is going to fall for that. If it’s after the midterms, I think that really depends on who controls the Senate. If Democrats control the Senate, pushing a nominee through like Neil Gorsuch would become a lot more difficult. Someone like that would be very unpopular with Democrats, so you’d expect to see a more moderate candidate. I think right now, Mitch McConnell is probably having an emergency meeting with this staff, trying to figure out strategically what’s the best for Republicans in the Senate to do. I suspect it’s to try to move things along quickly rather than risk having some sort of disaster happen in the 2018 midterms.