WWS Reacts

WWS Reacts: Justice Anthony Kennedy Announces Retirement

Jun 28, 2018
B. Rose Kelly
Woodrow Wilson School

Justice Anthony Kennedy, a conservative who was often the “swing vote” on prominent cases, announced his retirement from the Supreme Court, effective July 31. Kennedy’s departure has significant implications for the court and will likely spark controversy on Capitol Hill.   

We discussed the news with Paul Frymer, professor of politics and director of Princeton University's Program in Law and Public Affairs, based at the Woodrow Wilson School of Public and International Affairs. Frymer studies American politics, institutions, law and American political development.

Q. Justice Kennedy announced his retirement from the Supreme Court. What’s your reaction to the news?

Frymer: I am not shocked because rumors of his impending retirement have been swirling for some time. Given his reputation for being a swing judge with an eye towards rising above partisan divisions, I am a bit surprised that he chose his final set of decisions to be highly contentious and partisan where he sided uniformly with the rest of the conservatives against the four liberals on the court. Many watchers of the Supreme Court thought he might be the conservative on the court most likely to resist Trump’s agenda. This year, that has not been the case; all five of the conservative judges have been supportive of Trump’s authority and Republican power.

Q. President Trump now has an opportunity to nominate another conservative justice, creating a five-justice bloc of conservatives. What implications would that have? And how will Kennedy’s decision to retire transform the Supreme Court, both immediately and long term?

Frymer: Mostly at the margins. If Republicans do not bend to Democratic outrage, which has been building in response to the failed nomination of Merrick Garland and the contentiousness of both the Obama and Trump administrations, this is likely to be an extremely conservative judge. Such a judge would have made no difference in the recent 5-4 cases the court has decided. Kennedy has been a part of a conservative majority, albeit concurring in a case that is likely not to fare well in history, the so-called Muslim ban decision in Trump v. Hawaii. Indeed, Kennedy has been a quite consistently conservative judge throughout his career. But the new judge is likely to be one who would not have sided with Kennedy on some of his famous dissents from the conservatives, such as on gay rights and abortion when he went with the four liberals to provide them majorities.

Q. Senate Majority Leader Mitch McConnell wants to confirm a new justice before midterms. How can he do this with a straight face—especially given all that unfolded with President Obama’s choice of Merrick Garland? And what implications will this have if pushed through by then?

Frymer: McConnell has never denied being partisan, regardless of consistency, Constitution, or public good. I don’t see why he’d blink this time. Left-wing voters are already furious at the state of American politics, and this will only further that anger. I don’t know if it will independently add to their anger. Although, if the politics of abortion become a central talking point around this pick, it will only further mobilize opposition from an increasingly pronounced gender gap in American politics. That said, abortion politics could also serve to mobilize the Christian right.

Q. Some say this will spark a “firestorm” on Capitol Hill, especially since Republicans changed the rules of the Senate to push through Justice Neil Gorsuch's nomination. Do you agree?

Frymer: One might think so. But I’ve thought a lot of moments in the past decade would have created a firestorm. President Trump is very good at changing the agenda and the focus of public outrage, so will a firestorm be able to form given all the other balls that are in the air already? We could well be hearing from the Mueller investigation soon. Democrats have a lot of things to be outraged about, and I’m not sure that this is even in the top five. But one might think that a breaking point will eventually occur. Perhaps in the midterm elections, but there are institutional reasons that Republicans retain certain advantages regardless of the degree and scope of the firestorm. Not to mention that Trump’s popularity with Republicans has been quite stable.

Q. President Trump has a short-list of replacements for the position. Who do you think has the strongest shot, or is it too long of a list to really theorize?

Frymer: If there is a firestorm, and if Trump and McConnell care at all about trying to defuse the firestorm, I would guess that they would choose someone who will not so clearly oppose the precedent of Roe v. Wade. And, Republicans have been good at picking people who are considered generally qualified, “smart,” and good at interpreting the Constitution in a manner that fits their agenda and obscures clear ideological extremism. Like Judge Neil Gorsuch.

WWS Reacts is a series of interviews with Woodrow Wilson School experts addressing current events.