What does Justice Anthony Kennedy's retirement mean for the US Supreme Court?


Save Story
Leer en español

Estimated read time: 6-7 minutes

This archived news story is available only for your personal, non-commercial use. Information in the story may be outdated or superseded by additional information. Reading or replaying the story in its archived form does not constitute a republication of the story.

WASHINGTON, D.C. — America’s highest court is about to see a supreme shakeup.

United States Supreme Court Justice Anthony Kennedy announced last week he will retire at the end of July. President Donald Trump will have the opportunity to appoint his second nominee to the high court after Justice Neil Gorsuch was confirmed last year.

The 81-year-old Kennedy was appointed to the court by President Ronald Reagan in February 1988.

The announcement immediately ignited debate in the nation’s capital, with Democrats calling for Trump to delay his nomination until after this fall’s midterm elections. Some Republicans insist the court’s vacancy will be filled before then.

What does Kennedy’s retirement mean for the future of the U.S. judiciary, and how will this change the Supreme Court? Here are the answers to those questions and more:

How will Kennedy’s replacement be selected?

The president nominates a candidate for vacancies on the Supreme Court, and the Senate votes to confirm the nominee. A simple Senate majority — 51 votes — is needed to confirm a nominee to the court.

President Donald Trump announced last week he will reveal his Supreme Court nominee on July 9. Previously, he announced a shortlist of 25 possible nominees, including Utah GOP Sen. Mike Lee, the lone non-judge on the list.

Last week, Trump told reporters that he has identified at least five top candidates for the court vacancy and said he may interview up to seven people. Trump didn’t identify any of those top picks.

"It's a great group of intellectual talent," he said last week.

The Associated Press on Thursday cited sources that said Trump’s top three picks are federal appeals court judges Amy Coney Barrett, Brett Kavanaugh and Raymond Kethledge.

Lee isn’t considered a top prospect for the seat, according to the AP.

Senate Republicans hold a slim 51-49 majority, so they likely will need unanimous support on the GOP side of the aisle to confirm Trump’s pick — or they'll need to recruit a few Democrat votes.

However, Republicans may be without a vote from Arizona Sen. John McCain, who has been absent from the Capitol all year due to health reasons.

GOP Sens. Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska, might complicate things too. Both have said they will not vote to confirm a justice who will deny abortion rights.

If either Collins or Murkowski won’t vote to confirm Trump’s pick, Republicans will lack a majority. Both senators voted to confirm Gorsuch last year.

Who are Trump’s candidates for Kennedy’s replacement?

Amy Coney Barrett, Brett Kavanaugh and Raymond Kethledge all served as law clerks to Supreme Court justices at one point in their careers.

Amy Coney Barrett

Trump nominated Coney Barrett to the U.S. Court of Appeals for the Seventh Circuit in May 2017 after a seat was vacated there. She was confirmed by the Senate in October 2017.

She is a native of New Orleans and attended Notre Dame Law School, according to her biography.

She served as a law clerk for Justice Antonin Scalia from 1998-1999 before opening a private law practice in Washington, D.C. She also served as a faculty member at George Washington University Law School and at Notre Dame Law School.

Brett Kavanaugh

Kavanaugh was a law clerk for Kennedy from 1993-1994. He currently serves as a judge in the U.S. Court of Appeals for the D.C. Circuit. President George W. Bush appointed him to the seat in 2006.

He was born in Washington, D.C. in 1965, according to his biography. He attended Yale Law School and served as counsel and assistant to Bush from 2001 to 2006 when he was appointed to his current seat.

Raymond Kethledge

Kethledge also is a former law clerk to Kennedy, having served in that position from 1997-1998. He currently is a judge for the U.S. Court of Appeals for the Sixth Circuit and was appointed to that seat by Bush in 2007, according to his biography.

Kethledge went to law school at the University of Michigan and operated a private practice in Michigan from 2002-2008. The New Jersey native also served as legal counsel for Ford Motor Company from 2001-2002.

What kind of justice has Anthony Kennedy been?

Though he was a Reagan appointee, Kennedy hasn’t always been 100 percent conservative.

Over the course of his tenure on the court, he repeatedly voted in favor of expansions for gay rights.

He also sided with left-leaning justices on case decisions that dealt with issues such as race, the death penalty, and the rights of prisoners detained at Guantanamo Bay.

However, Kennedy voted with his conservative peers on landmark decisions such as Bush v. Gore in 2000, which settled an election recount dispute in Florida that led to George W. Bush’s presidency. He also voted with conservative justices on the controversial Citizens United v. FEC case, which led to changes in campaign finance laws in 2010.

How will Kennedy’s retirement change the Supreme Court?

As previously mentioned, Kennedy has leaned conservative but has often acted as a swing vote on the court.

It’s hard to say whether any of those top three candidates will stay firmly on the conservative side, or if they’ll swing from time to time, as Kennedy has done. All three have lengthy conservative records, but they have been flexible, too.

Much of the speculation surrounding Trump’s picks involves the likelihood that any of the candidates might vote to overturn Roe v. Wade — the landmark 1973 Supreme Court decision that legalized abortion.

Barrett, a devout Catholic, is staunchly pro-life. She has said that she believes life begins at conception. In 2003, Barrett wrote in a law journal that courts can be more flexible in overturning previous precedent, an opinion that some say suggests she might be willing to overturn Roe.

Kavanaugh slammed President Bill Clinton when he authored part of the Starr Report in 1998. The document detailed Clinton’s actions surrounding his affair with then-White House intern Monica Lewinsky.

In the report, Kavanaugh argued that a president could be impeached for lying to his staff and misleading the public.

Kavanaugh has since said he’s reconsidered some of his Starr Report opinions, according to the New York Times. He’s also argued that presidents should be protected from criminal investigations.

Kethledge interprets the First Amendment to include spending, an opinion in line with the Supreme Court’s 2010 Citizens United decision.

He also authored an opinion ending the Equal Employment Opportunity Commission’s attempt to limit credit checks that private companies could conduct on potential employees — a practice that the EEOC said led to racial discrimination.

Unlike Barrett, Kethledge said he would stick to Supreme Court precedent, according to TIME.

Most recent U.S. stories

Related topics

U.S.Politics

STAY IN THE KNOW

Get informative articles and interesting stories delivered to your inbox weekly. Subscribe to the KSL.com Trending 5.
By subscribing, you acknowledge and agree to KSL.com's Terms of Use and Privacy Policy.

KSL Weather Forecast