Trump to get another Supreme Court pick as judge announces retirement

U.S. Supreme Court Justice Anthony Kennedy has announced his retirement, giving President Donald Trump the chance to cement conservative control of the high court.

81-year-old Justice Anthony Kennedy has held key vote on high-profile rights cases

Supreme Court Associate Justice Anthony Kennedy has served on the Supreme Court for more than three decades. His retirement was announced Wednesday. (Denis Poroy/Associated Press)

Supreme Court Justice Anthony Kennedy announced his retirement Wednesday, giving U.S. President Donald Trump a golden opportunity to cement conservative control of the nation's highest court.

The 81-year-old Kennedy said in a statement he is stepping down after more than 30 years on the court. A Republican appointee, he has held the key vote on such high-profile issues as abortion, affirmative action, gay rights, guns, campaign finance and voting rights.

Kennedy informed his colleagues of his plans, then went to the White House to meet with Trump, where the president said they talked for half an hour about a potential successor and other topics. The retirement will take effect at the end of July.

Trump praised Kennedy as a man of "tremendous vision" and said his search for a new justice would begin "immediately."

At a really in Fargo, N.D., Wednesday evening, Trump said he wants to pick a nominee who will serve on the court for four decades or more.

"We have to pick one that's there for 40 years, 45 years," he told the crowd. 

Without Kennedy, the court will be split between four liberal justices who were appointed by Democratic presidents and four conservatives who were named by Republicans.

The other two older justices, Ruth Bader Ginsburg, 85, and Stephen Breyer, 79, are Democratic appointees.

List of 25 candidates

Trump's nominee is likely to give the conservatives a solid majority and will face a Senate process in which Republicans hold the slimmest majority, so Democrats can't delay confirmation.

Trump's first high court nominee, Justice Neil Gorsuch, was confirmed in April 2017. 

If past practice is any indication, Trump will name a nominee within weeks, setting in motion a process that could allow confirmation of a new justice by early August.

U.S. President Donald Trump watches as Kennedy administers the judicial oath to Justice Neil Gorsuch during a re-enactment in the Rose Garden of the White House on April 10, 2017. (Evan Vucci/Associated Press)

Trump already has a list of 25 candidates — 24 judges and Utah Sen. Mike Lee — and said he would choose a nominee from that list.

Prominent on that list are Judges Thomas Hardiman of Pennsylvania and William Pryor of Alabama, who were seriously considered for the seat that was eventually filled by Justice Neil Gorsuch, and Judge Brett Kavanaugh, who serves on the federal appeals court in Washington, DC. 

Kavanaugh is a longtime Washington insider, having served as a law clerk to Kennedy and then as a key member of independent counsel Kenneth Starr's team that produced the report that served as the basis for President Bill Clinton's impeachment.

In October, Kavanaugh dissented when his court ruled that an undocumented teen in federal custody should be able to obtain an abortion immediately.

Abortion issue

Abortion is likely to be one of the flash points in the nomination fight. Kennedy has mainly supported abortion rights in his time on the court, and Trump has made clear he would try to choose justices who want to overturn the landmark abortion rights case of Roe v. Wade. Such a dramatic step may not be immediately likely, but a more conservative court might be more willing to sustain abortion restrictions.

Interest groups across the political spectrum are expected to mobilize to support and fight the nomination because it is likely to push the court to the right.

Republicans currently hold a 51-49 majority in the Senate, although that includes the ailing Sen. John McCain of Arizona. If Democrats stand united in opposition to Trump's choice, Senate Majority Leader Mitch McConnell of Kentucky can lose no more than one vote. If the Senate divides 50-50, Vice-President Mike Pence could break a tie to confirm the nominee.

In this Aug. 6, 2010, file photo, Kennedy, left, and his wife, Mary Davis, attend a ceremony in the East Room of the White House in Washington. (Pablo Martinez Monsivais/Associated Press)

Regardless of who replaces him, Kennedy's departure will be a massive change for the high court, where he has been the crucial swing vote for more than a decade.

He has sided with the liberal justices on gay rights and abortion rights, as well as some cases involving race, the death penalty and the rights of people detained without charges at the Guantanamo Bay naval base. He has written all the court's major gay rights decisions, including the 2015 ruling that declared same-sex marriage is a constitutional right nationwide.

However, he also has been a key vote when conservatives have won major rulings on the outcome of the 2000 presidential election in favour of George W. Bush, on gun rights, limiting regulation of campaign money and gutting a key provision of the landmark federal Voting Rights Act.

Retirement not expected

There were no outward signs that Kennedy was getting ready to retire. He had hired his allotment of four law clerks for the term that begins in October and he is planning to spend part of the summer as he typically does, teaching a law class in Salzburg, Austria.

But several former law clerks have said that Kennedy, a nominee of President Ronald Reagan, preferred to be replaced by a Republican. If he had waited, and if Democrats had taken control of the Senate in November, Trump could have found it more difficult to get his choice confirmed.

Few obstacles seem to stand in the way of confirming Kennedy's replacement before the court reconvenes in October. Republicans changed the rules during Gorsuch's confirmation to wipe out the main delaying tactic for Supreme Court nominees, the filibuster, and the need for 60 votes to defeat it.


A look at some of Justice Kennedy's most memorable opinions

Anthony Kennedy may have been appointed by a Republican president, but his opinions over the last three decades have been challenging to pigeonhole from a partisan perspective.

Kennedy has been a key — even swing vote — on high-profile issues including gay rights, abortion, affirmative action and campaign finance.

Here's a sampling of some of his most notable opinions:

OBERGEFELL v. HODGES (2015)

In a landmark gay marriage decision, Kennedy wrote for a sharply divided court that same-sex couples have the right to marry anywhere in the United States.

The seminal ruling, which prompted cheers and dancing outside the courthouse, meant that individual states could not enforce bans on same-sex marriage. It also held that the constitution's promises of due process and equal protection guaranteed the right of gay couples to marry without legal barrier.

"Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions," Kennedy wrote of gay couples seeking to marry. "They ask for equal dignity in the eyes of the law. The constitution grants them that right."

UNITED STATES v. WINDSOR (2013)

The Obergefell case was hardly Kennedy's only significant opinion on gay rights.

He wrote a 2003 opinion that invalidated Texas's law against sodomy. Ten years later, Kennedy wrote a landmark decision that struck down a key section of a federal law that kept legally married same-sex couples from receiving tax, health and pension benefits.

The Windsor case concerned a section of the federal Defence of Marriage Act that said same-sex couples were barred from collecting federal marriage-related benefits.

In an opinion joined by the court's four liberal justices, Kennedy said the primary effect of the law, known as DOMA, was to "identify a subset of state-sanctioned marriages and make them unequal."

CITIZENS UNITED v. FEC (2010)

In arguably the most significant campaign finance ruling in the court's history, Kennedy wrote the 5-4 opinion that opened the door to greater political spending by independent groups.

The opinion removed caps from independent spending by corporations and labour unions.

Kennedy wrote for the deeply divided court that limits on spending by corporations and unions ran afoul of First Amendment protections.

"If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech," Kennedy wrote.

The opinion was publicly derided by President Barack Obama in a State of the Union address and was criticized by groups seeking to limit the influence of big money in politics.

BOUMEDIENE v. BUSH (2008)

The Boumediene case was one in a series of Supreme Court decisions that tested the legal rights of Guantanamo Bay detainees and the Bush administration's authority to hold enemy combatants there.

In a 2008 opinion that covered centuries of European and American history, Kennedy held that detainees had the right to challenge their detention, and the basis for it, in court and before a judge.

"Within the constitution's separation of powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the executive to imprison a person," Kennedy wrote. "Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek."

ROPER v. SIMMONS (2005)

Kennedy wrote multiple notable opinions on capital punishment, including this 2005 ruling that said it was unconstitutional to execute defendants for crimes they committed when they were younger than 18.

The case concerned a gruesome Missouri murder and a 17-year-old defendant, Christopher Simmons, who was convicted along with a friend of kidnapping a woman from her home and throwing her body over a bridge and into a river.

Simmons was sentenced to death. But Kennedy held that it violated the Eighth Amendment's prohibition against "cruel and unusual punishment" to execute people for crimes committed as juveniles.

"When a juvenile offender commits a heinous crime, the state can exact forfeiture of some of the most basic liberties, but the state cannot extinguish his life and his potential to attain a mature understanding of his own humanity," Kennedy's majority opinion said.

With files from Reuters