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Faculty, Alumni Offer Insights on a Post-Kennedy U.S. Supreme Court

Supreme Court Justice Anthony Kennedy announced his retirement, prompting media coverage that features commentary by law faculty and alumni

July 05, 2018

The bombshell announcement of U.S. Supreme Court Justice Anthony Kennedy’s retirement prompted numerous news outlets to seek out the views of law school faculty and alumni.  

“This is the most consequential retirement we’ve had in modern court history,” Professor Lisa Tucker said during an interview on WHYY’s Radio Times that aired on June 29.  

Kennedy’s retirement is important only partly because he represented a swing vote on many cases, Tucker said. “Abortion, affirmative action, search and seizure, he was right in the center of all of these things."

Because President Trump has signaled his intention of choosing a young justice, Tucker said, the appointment will have a lasting impact.

“It has this unbelievable ripple effect, because this person can participate in undoing some of what Justice Kennedy helped form and build and then also make new law that lasts,” she said.

While many observers contend that the Supreme Court strives to honor precedent, Tucker said the current justices have already signaled a willingness to buck prior rulings such as Roe v. Wade.

“In Janus, the case about labor unions, they said there’s this 40-year-old case, we held this, and that is no longer,” McElroy observed. “With respect to Roe, people say ‘Well it’s settled law, and they won’t overrule it.’ That’s worth the paper that it’s written on.”

In a June 29 article in the Philadelphia Inquirer, Tucker said the court may opt to chip away at Roe incrementally.

Despite Kennedy’s reputation as a moderate, he “was not a reliable vote for abortion rights,” Professor David S. Cohen told The New York Times in a June 28 article. “He only voted to strike down a couple of abortion restriction laws—but he was reliably in favor of treating abortion differently, as a protected right under the Constitution.”

Cohen noted that some progressive observers hope that Chief Justice John Roberts will be inclined to avoid rulings that make the court appear to be partisan.

“The best hope is top appeal to the chief’s sense of the court as a special, above-politics institution,” Cohen said in a June 27 article in the Times.

Should the court overturn Roe v. Wade, Cohen said in a June 29 interview with the Philadelphia Inquirer, at least 20 states would be politically poised to pass laws criminalizing abortion. In a July 2 article in Vox, Cohen noted that dozens of cases currently pending in federal court could prompt the justices to revisit abortion rights.

Professor Anil Kalhan, in an interview with Vice published on July 2, predicted that the court will become more political, noting the connections between several justices and right-wing organizations such as the Tea Party and the Federalist Society.

“The GOP and the conservative movement have treated the court much more as a political institution than the Democrats,” Kalhan said.

Mulling Kennedy’s impact, ’10 alumnus Juan Baez, the deputy managing attorney of the AIDS Law Project of Pennsylvania, said in an interview with 6ABC that aired on June 27 that the justice had the most enduring effect on social issues. Baez noted that Kennedy cast the deciding vote in the recent decision to uphold the Trump administration’s travel ban.

Priscilla Jimenez, ’11, an associate at Kline & Specter, told 6ABC that the ruling on same-sex marriage that Kennedy wrote “was one of the most beautiful pieces that I’ve ever read.”