-- The final day of the Supreme Court’s term came and went with no retirement announcement. However, any forthcoming court departure would allow President Donald Trump to make his second court appointment to the nation’s highest court.
To help break down what might come next and the potential consequences, we reached out to Kate Shaw, an ABC News contributor and a Cardozo School of Law professor.
In the event of a retirement, would the justice leave the court immediately? Do we know?
KS: There’s no set practice in this regard: Sometimes a justice will announce a retirement that’s effective immediately; sometimes a justice will make retirement contingent on the confirmation of a successor (presumably to avoid leaving the court shorthanded in the event of a protracted confirmation process). So it’s really up to the individual justice.
So to review, Trump would again have his pick in terms of the nominee. Do we know who the president might select?
KS: We won’t know anything for sure until the president makes an announcement, but we have a pretty good idea of the pool he’ll be drawing from -- reportedly the same two lists he drew on when selecting Neil Gorsuch to fill Justice Antonin Scalia’s seat. So top contenders are expected to be Judge Thomas Hardiman, Judge William Pryor, Judge Steven Colloton, Judge Amul Thapar, Judge Raymond Kethledge and Judge Diane Sykes. That said, White House press secretary Sean Spicer suggested earlier this week that there might be new names in the mix -- potentially because the lists were assembled before the Senate rule change that eliminated the filibuster for Supreme Court nominees.
And can we expect a more conservative nominee selection now that confirmation would only require 51 votes?
KS: I do think there will be less concern about potentially controversial nominees this time around. Though Justice Gorsuch is certainly extremely conservative -- his early months on the court leave no real doubt about that -- his written record before joining the court was relatively free of controversial topics. Not so for some of the other names we've been hearing. Eleventh Circuit Judge William Pryor, for example, was a short-lister for the Scalia seat, and at that point, he was viewed as the most potentially divisive candidate in the pool -- for example, he’s called Roe v. Wade the “worst abomination of constitutional law in our history.” I think that's part of the reason he wasn't chosen. In the wake of the rule change, he (and others like him) could get a more serious look.
Let’s look at the possibility of an Anthony Kennedy retirement. There was speculation he could retire this year. How would that impact the ideological makeup of the court?
KS: There’s no question that this would be a massive development. Mitch McConnell successfully prevented President Barack Obama from cementing the court’s liberal majority when he refused to hold a hearing and then vote on Judge Merrick Garland, Obama’s nominee to fill the vacancy left by the death of Scalia. But the confirmation of Neil Gorsuch to fill the Scalia seat only restored the court to its 4-1-4 balance.
The retirement of Kennedy, by contrast, could have a profound effect on the law, if Trump replaced the court’s swing justice -- who in recent years was a reliable vote with the liberals on a number of social issues -- with a solid conservative.
One major area in which we could see transformational effect on the law is abortion. Justice Kennedy had a complicated relationship to abortion. He surprised court-watchers in 1992, in a case that many people thought spelled the end for Roe v. Wade; in that case, he joined with fellow Republican nominees Sandra Day O’Connor and David Souter to reaffirm Roe’s core holding. But then in 2007, he joined the conservatives in upholding a federal law prohibiting so-called “partial-birth abortion.” Then just last year he joined the liberals in a strong opinion striking down a restrictive Texas abortion law and again reaffirming Roe. So his most recent vote has been in favor of robust constitutional protections for abortion. A more conservative nominee -- certainly one like Judge Pryor, but really virtually everyone on the lists we’ve seen -- would likely vote to overturn or at least dramatically narrow Roe in the right case. So a lot of attention would shift to Chief Justice Roberts, who’s been a reliable vote against abortion but who also might worry about what a decision overturning Roe might do to the court’s standing and legitimacy.
Gay rights are another area in which Justice Kennedy leaves a very significant legacy. He’s the author of four hugely important cases on gay rights -- beginning in 1996, moving onto a landmark 2003 decision striking down state statutes that criminalized sex between adults of the same sex, and culminating in the 2015 decision declaring marriage equality the law of the land. I don’t think this area is as vulnerable as abortion -- a new majority could act to protect the rights of religious objectors to, say, participate in same-sex marriages, but I don’t think there’s much chance of these opinions being overturned outright. But it’s certainly not impossible.
The death penalty is another area in which Justice Kennedy sometimes voted against traditionally conservative positions. He authored an opinion finding that the death penalty couldn’t be imposed on individuals who committed their crimes as juveniles; he also wrote an opinion finding that the death penalty couldn’t be imposed for nonhomicide crimes, like the rape of a child. And he has expressed real doubts about the constitutionality of prolonged solitary confinement. A more conservative justice might be less inclined to favor these sorts of limitations.
Finally, his views on race seemed to shift somewhat in his last few years on the bench. He was once a strong opponent of affirmative action, for example, dissenting from a 2003 opinion allowing the University of Michigan Law School to consider race in its admissions process. But just last year, in the second trip to the court for Abigail Fisher, who challenged race-conscious admissions at the University of Texas, Kennedy authored the opinion affirming the constitutionality of the university’s program.
To be sure, Kennedy voted with the court’s conservative block in many cases -- two prominent examples are the court’s opinion striking down D.C.’s handgun ban in the Second Amendment case D.C. v. Heller, which he joined, and the landmark Citizens United opinion, which he authored. So his legacy is complex; but there’s no question that he has left a huge impact on the law.