Retiring Supreme Court Justice Leaves Future Uncertain for Landmark Decisions

Rocking the country in a recent announcement, Supreme Court Justice Anthony Kennedy announced his intention to retire from the high court, giving President Trump the rare opportunity to nominate a second justice, Brett Kavanaugh, to the bench.  As Kennedy was often a swing vote in the court’s verdicts, a reliably conservative replacement would have the power to reverse several crucial decisions.

Roe v. Wade is one of the most frequently discussed cases with the potential to be revisited by the post-Kennedy court. While Kavanaugh declined to discuss his personal opinions on abortion, many agree that, as a staunch conservative, he may be inclined to overturn the landmark decision.

Massachusetts v. EPA could also be reversed, despite the fact that Kavanaugh does confirm the role humans play in global climate change. While Kavanaugh did affirm that it is a moral and policy imperative to regulate environmental damage, he emphasized that the economic costs of doing so should not be ignored.

Two other cases decided by Justice Kennedy’s swing vote, Obergefell v. Hodges and Kennedy v. Louisiana, which deal with same-sex marriage and the expansion of the death penalty respectively, face the possibility of reversal. In returning consideration of these matters to the states, there could be distinct changes in conservative areas.

While Senator Mitch McConnell has promised to begin confirmation hearings in September or October, both past political involvement and a razor thin Republican majority will complicate the proceedings. Realistically, moderate Republicans, especially those who support abortion rights, and red state Democrats will be those who decide if Kavanaugh can clinch the needed 51 votes. Kavanaugh has already begun meeting with senators, and he must prepare for a rigorous vetting process by the Senate Judiciary Committee. While the Republican majority makes it likely that he will ultimately be confirmed, opposition is already fierce, particularly from Senator Cory Booker, who suggested President Trump’s pick was ultimately self-serving, as Kavanaugh has said in the past he does not believe a president should be subject to criminal investigation.

We will continue to watch this process and provide updates along the way.

Nathan Green