Justice Anthony Kennedy announced his retirement this afternoon. For decades, Kennedy was the swing justice on an otherwise ideologically balanced Supreme Court. Although he never served as chief justice, his vote was decisive in a great number of major cases.
[Also read: Trump sticking with list of 25 potential Supreme Court justices to replace Anthony Kennedy]
Here are six cases in which Kennedy sided with the more liberal members of the court in order to produce a 5-4 ruling. A post-Kennedy court in which the justice is replaced by a reliably conservative jurist could overturn any or all of these cases
Roe v. Wade struck down all state abortion restrictions in 1973. Kennedy nearly sided with what would have been a majority to overturn Roe in the 1992 case Planned Parenthood v. Casey, but he was persuaded against it by Justice Harry Blackmun, as Blackmun’s notes later showed.
If Kennedy is replaced by a conservative justice, Roe and the subsequent abortion jurisprudence could conceivably be overturned. Although this is a political rallying cry on some parts of the Left, it would not be as dramatic as many claim. Most people wouldn’t notice a difference, but there would be support in some states to ban abortion and probably in most states to limit it further.
Kelo v. New London, in whose majority Kennedy participated in 2005, re-established that private property can be taken from owners through eminent domain for nonpublic uses. In this specific case, people’s houses were handed over to private developers, whom the local government believed could make the land produce more tax revenue.
It is very likely that this ruling would be overturned if such a case were brought to a post-Kennedy court with an additional conservative judge. If it were, then cities and towns would face new obstacles in trying to seize the homes of residents unless they were actually doing so for public uses, such as the construction of roads or schools, or the development of power and water infrastructure.
Obergefell v. Hodges established in 2015 that all states are constitutionally mandated to recognize marriages between two people of any sex. If it were overturned, the most likely outcome is that a few states might stop allowing new same-sex marriages. But it probably wouldn’t happen immediately, and it could be quite difficult to assemble political support for it at the moment.
Massachusetts v. EPA was the 2007 George W. Bush-era case in which Kennedy joined with four liberals to rule that the Environmental Protection Agency must regulate carbon dioxide as an air pollutant under the Clean Air Act.
The Obama administration’s Clean Power Plan implemented this ruling, and the Trump administration has been working through the regulatory process to roll back the Clean Power Plan.
If a state sues, arguing that the EPA lacks the authority to regulate greenhouse gases, or at least is not required to do so, a conservative majority could strike down Massachusetts v. EPA. This would make it smooth sailing for the Trump administration to dismantle former President Barack Obama’s regulations such as the Clean Power Plan. Of course, a Democratic president after 2020 might make such a ruling irrelevant.
In the 1995 case U.S. Term Limits, Inc. v. Thornton, the Supreme Court ruled that individual states impose term limits on members of Congress, because they may not set rules for would-be members of Congress that are more restrictive than what’s outlined in the U.S. Constitution.
Kennedy joined with the majority, and also authored a concurrence. The four justices who signed on to Justice Clarence Thomas’ dissent, including Sandra Day O’Connor, argued that nothing in the Constitution deprived state legislatures of setting term limits or other eligibility requirements. If this ruling were overturned, the individual states would then be given the power to assign eligibility requirements for congressional candidates.
Kennedy v. Louisiana (which is named after a child rapist, not the retiring justice) blocked the expansion of the death penalty for violent crimes where the victim did not die and was not intended to be killed. Kennedy wrote the majority opinion in 2008, which was joined by the four liberals on the court. The ruling, it should be noted, left open the possibility of putting traitors or major drug traffickers to death.
Justice Sam Alito, in his dissent, criticized Kennedy for attempting to define a national consensus as to what constituted cruel and unusual punishment instead of allowing a political debate and legislative action.
If this ruling were overturned, states might be permitted to impose the death penalty for crimes like aggravated child rape, the offense in this case, although it is unclear whether any states would seek to do this.
