On Wednesday, June 27, 2018, the U.S. Supreme Court Justice Anthony Kennedy announced his retirement, effective July 31, giving President Trump the chance to appoint a second conservative judge in his second year of presidency.
However, unlike the president’s selection of Justice Neil Gorsuch, where a conservative replaced another conservative, Justice Antonin Scalia (who died on February 13, 2016), this time a supposedly more conservative judge will replace the more moderate Kennedy.
This will shape the orientation of the Supreme Court for decades, signaling the beginning of a new era, which I would call “the golden age of conservatism,” where a solid majority of conservative constitutionalist judges will have the opportunity to interpret the U.S. Constitution in the original meaning taken into account by its creators.
Justice Anthony Kennedy was nominated by President Ronald Reagan and assumed office on February 18, 1988. Although he reliably issued conservative rulings during most of his tenure, conservative pundits have described his jurisprudence as “libertarian” and he was usually considered “the swing vote” (a label that he rejected). https://en.wikipedia.org/wiki/Anthony_Kennedy
Justice Kennedy sided with conservatives for imposing some restrictions on voting (for people who skip elections), unleashing campaign spending by corporations, blocking gun control measures, endorsing President Trump’s power over immigration, and limiting the unions’ rights to collect fees from nonmembers.
On the other hand, Kennedy embraced liberal views on abortion, death penalty, and gay rights. Another criticism from conservatives was related to the fact that Kennedy was a leading proponent of the use of foreign and international law as an aid to interpreting the U.S. Constitution.
In the end, Kennedy, who is 81-year old, decided to retire during Trump’s administration, possibly also as a result of the president’s assurances that some of his nominees would be among the justice’s former clerks. And, indeed, this was the case with Justice Gorsuch, and also with another nominee, Brett Kavanaugh, a federal appellate judge for the District of Columbia Circuit, who also clerked for Justice Kennedy at the Supreme Court.
The U.S. Senate, which is under Republican control, will confirm without any Democratic support the president’s nominee before the midterm elections in November. Senator Mitch McConnell of Kentucky, the majority leader, confirmed the very day Justice Kennedy announced his retirement that the Senate would vote to confirm his successor “this fall.”
This event is extremely important for the American nation. As President Trump put it, shortly after meeting with Justice Kennedy, the selection of a justice of the United States Supreme Court is “outside of, obviously, war and peace… the most important thing that you could have.” https://www.nytimes.com/2018/06/27/us/politics/anthony-kennedy-retire-supreme-court.html
But this event is also very important for me, for at least a couple of personal reasons.
First, as a young law school graduate of Bucharest University (in Romania), I practiced as a judge. As my father, a 40-year-tenured judge, I firmly believed in “the letter of the law” first and only then in “the spirit of the law.” My father used to tell me: “Son, the worst prepared judges are the ones who think they are independent.”
What he meant was this: the independence of a judge decreases exponentially with the increase of his knowledge of law and jurisprudence. By following the letter of the law (even with the spirit of the law in mind), the judge would end up having only a limited margin to operate. I guess I was an originalist judge since the beginning of my career.
Second, soon before my Fall 1997 LL.M. graduation (from the American University College of Law in Washington, DC), more precisely in May-June 1997, I had the opportunity to visit the Supreme Court with some of my class colleagues and professors, and also meet with Justice Anthony Kennedy personally. It was an unforgettable experience. For more than an hour, we talked with him and addressed him questions, and he told us many interesting facts about the court, and peppered his stories with several anecdotes. He was a very calm and jovial man.
At a certain moment, I risked a political question and asked him how he was seeing the world in general and the United States in particular, after the fall of communism. Citing from my memory, his answer was this: “The United States has remained the only sustaining pillar in the world today for a very good reason, you know.” “What is the reason?” asked the audience incited. He continued: “Well, it’s the only country with both power and a system” (“capitalist system,” I think he meant). And then, half amused, he concluded: “China has an increasing power, but it lacks the system. And Russia, while it’s getting the system, now it lacks the power.” Short and to the point!
During those times I liked Justice Kennedy a lot, since he was a reliable conservative. However, 10 years after, since 2006, when Sandra Day O’Connor retired, he has been the swing vote on many of the Roberts Court’s 5-4 decisions. This has made me less sympathetic of him. The truth of the matter is that, although appointed by a Republican president, Kennedy was hard to be considered an “ideologue” and he tended to take the cases individually rather than deciding them on the basis of a certain ideology. After 2006, in particular, maybe he felt more comfortable with his inner self and his judicial philosophy by sliding to the center and becoming the “swing vote” of the Court. Let alone the “decider” stardom status that all “swing vote” justices have enjoyed over time.
But no matter one’s personal feelings about Justice Anthony Kennedy, his retiring will open a new era in the American judiciary and jurisprudence.
Tiberiu Dianu has published several books and a host of articles in law, politics, and post-communist societies. He currently lives and works in Washington, DC and can be followed on MEDIUM. https://medium.com/@tdianu