Supreme Court Justice Anthony M. Kennedy announced Wednesday that he will retire at the end of next month, preparing the way for the most significant change in the court’s makeup in half a century.
The vacancy will allow President Donald Trump to make the U.S. Supreme court a solidly conservative body for years, if not generations, to come — a towering legacy of his time in office.
A spokesman for Senate Majority Leader Mitch McConnell, R-Ky., said he saw no reason why a new justice couldn’t be confirmed before the midterm elections in November. McConnell himself said on the Senate floor that the vote to confirm Kennedy’s successor would take place “this fall.”
When McConnell was asked if he thinks it is fair to hold a confirmation vote on a Supreme Court nominee during an election year after he blocked President Barack Obama’s nomination of Merrick Garland during an election year, he responded, “There’s no presidential election this year.”
The president has a list of 25 potential Supreme Court nominees that the White House has previously made public and Trump said Kennedy’s replacement would come from that list.
“Hopefully we’re going to pick someone who will be as outstanding” as Kennedy, Trump told reporters at the White House.
Kennedy’s departure on July 31, which had been rumored for the last year, could put in doubt the future of a nationwide right of access to abortion.
“Justice Kennedy was the most important member of the court in a century, maybe ever,” said Tom Goldstein, a Washington lawyer who argues frequently before the court and publishes the SCOTUSblog web site.
Kennedy turns 82 in July and is the court’s second-oldest justice. Ruth Bader Ginsburg is 85.
Since 2006, when moderate conservative Sandra Day O’Connor left the court, Kennedy has been the swing justice, often casting the deciding vote in the most high-profile cases.
But he joined the liberals in banning capital punishment for the youngest offenders, declaring that prisoners at Guantanamo Bay had a right to challenge their detentions and limiting the powers of the states to enforce their own tough immigration laws.
He profoundly shaped the court’s rulings on gay rights, writing four of its most important decisions, including the landmark 2015 ruling that struck down bans nationwide on same-sex marriage.
“It’s not just that he was the pivotal vote so often. It’s that his thinking changed the country,” Goldstein said. Gay rights is the biggest example, but it’s not the only one.”
Any nominee chosen by Trump is sure to be more conservative than Kennedy. The president would likely pick someone as ideologically to the right as Neil Gorsuch, who has voted with the court’s other conservatives in nearly every case since taking his place on the bench just over a year ago.
President Ronald Reagan nominated Kennedy, a fellow Californian, in 1987 after the Senate rejected Robert Bork as too rigid and after a second nominee, Douglas Ginsburg, admitted smoking marijuana.
At first a reliable conservative, Kennedy soon broke away and voted to uphold the court’s 1973 Roe v. Wade abortion decision. But 14 years later, he wrote the ruling that approved a federal ban on so-called partial-birth abortions.
A Trump-nominated successor to Kennedy would likely become the court’s fifth reliable conservative, joining Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Gorsuch. Because only Thomas has declared opposition to Roe v Wade, it’s uncertain whether opponents of abortion would have the five votes needed to overturn it.
A year ago, he told friends he was considering stepping down, but he returned to the bench last October for the start of the current term. His departure will end nearly 31 years of service on the Supreme Court.