Justice Kennedy is retiring from the U.S. Supreme Court. What does this mean?

Written by; Women’s March Minnesota Civil Rights Committee Members, and Sarah M. - Civil Rights Committee Lead


Last week, we saw The Supreme Court of the United States (SCOTUS) narrowly vote to strip away rights and trample on progressive values; specifically women’s rights, immigrant rights, and workers’ rights. In the midst of all this, Justice Anthony Kennedy of the U.S. Supreme Court announced his retirement, effective July 31st. Many of us felt shell-shocked knowing what this means for the future of our country.

The Supreme Court of the United States consists of 9 justices, appointed by the President, and confirmed by the U.S. Senate. These are lifetime appointments, so their decisions impact our democracy for generations. The current court has often issued 5-4 decisions, with 4 justices voting “liberal”, 4 “conservative”, and 1 “swing” vote. Justice Kennedy was often a crucial swing vote on a number of fundamental human and civil rights decisions, including marriage equality and reproductive rights.

It is expected that this administration's nomination will be a conservative vote, moving the court to the right and “Giving Donald Trump a golden chance to cement conservative control of the nation’s highest court.” as stated by AP reporter Mark Sherman.

Justice Kennedy not only acted as a swing vote, but also wrote the majority opinions in a number of cases that gave basic protections to those in the LGBTQIA+ community. In 2013, United States v. Windsor, Kennedy’s swing vote ended the federal ban on marriage between same-sex partners. In 2015’s Obergefell v. Hodges, Justice Kennedy voted to end state bans on the marriage of same-sex couples.  He also wrote the opinion of the Court. The opinion focused on considerations of individual freedom, fairness and equality when exercising fundamental rights that impact a person’s family, freedom, and destiny.

Kennedy’s retirement could also potentially have terrible effects on reproductive rights and women’s rights in the United States. In 1973, in Roe v. Wade, the United States Supreme Court recognized that women have a constitutionally protected right to an abortion, under the 14th amendment, due to it falling within the right to privacy. Since Roe, there have been numerous attempts to restrict a woman’s right to choose. These attempts will only increase with a solid anti-abortion majority on the Court.

Without Kennedy on the Court, we risk losing a Justice that is committed to a personalized view of liberty and the idea that there is personal independence and dignity guaranteed by the 14th Amendment. Overall, there is a clear risk that the constitutional right to an abortion could potentially be entirely reversed.

These landmark decisions could be overturned by the future U.S. Supreme Court, reversing 40 years of progressive work. Imagine a world where women no longer have the right to choose, and many people cannot marry the person they love. If you do not want that world to become a reality, now is your time to SPEAK UP and FIGHT to preserve these basic rights.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
— 14th Amendment

The President has stated he will nominate Kennedy’s successor on July 9th. If his nominee is appointed to the Court by the GOP majority, it will create an imbalance in power. So, why should we place this decision in the hands of a corrupt president? One that is under investigation for allegedly colluding with foreign powers. We need to repeatedly emphasize that a president under active investigation should not choose Supreme Court nominees since issues involved in the Russia investigation--such as the validity of subpoenas requested by Special Prosecutor Robert Mueller in the Russia investigation--may come before the Court. Therefore, we cannot allow a vote by the U.S. Senate on Trump’s nominee to happen until after the November election.

Even though all of this seems daunting, there are still things that we can do, and need to do!  Our newsletters this month will provide further information on how the President's nomination to the U.S. Supreme Court could affect the rights that we all care about. We will include specific actions you can take, as well as ways to get involved locally.

In the meantime, contact your U.S. senators, Tina Smith and Amy Klobuchar and Senators Lisa Murkowski and Susan Collins. Murkowski and Collins are pro-choice republicans that have stated that they’re unafraid of breaking from their party if necessary on this issue. Their votes could affect whether this administration's choice for the Court is confirmed. Our democracy is at stake! It only takes a few minutes to have your voice heard.