Editor’s Note: Richard Lazarus is the Howard and Katherine Aibel Professor of Law at Harvard University, where he teaches environmental law, natural resources law, Supreme Court advocacy, and torts. He has represented the US, state and local governments, and environmental groups in the Supreme Court. The views expressed are his own.
Justice Anthony Kennedy’s announced retirement earlier today sent shock waves across the nation’s capital and the nation itself. Justice Kennedy’s impact on the Supreme Court during the past 30 years has been enormous. He has been at the center of the Court, often supplying the controlling vote in closely divided, high-profile cases. But he has not been a judicial minimalist. Whichever way he swings, Justice Kennedy swings for the fences.
Liberals and conservatives alike can easily identify Kennedy opinions and decisive votes that they love and that they deplore – on campaign finance, abortion rights, the Second Amendment, affirmative action, gay marriage, and environmental protection, among many others. Even in presidential elections, as Bush v. Gore reminds us.
The justice has played a leading role in shaping the nation’s laws. He simultaneously projects a grand vision of law and justice, while resisting easy pigeonholing. Yesterday’s cheerleaders become today’s critics and vice versa.
Justice Kennedy’s own nomination to the court also leaves little doubt that the stakes of his replacement now are very real. Kennedy’s joining the court was made possible only because the Senate first famously rejected Robert Bork, President Ronald Reagan’s initial nominee and a staunch conservative, to replace retiring Supreme Court Justice Lewis Powell, considered a moderate conservative. The Democratic-controlled Senate was concerned that Bork’s joining the court could lead to a major shift in its rulings.
Bork’s failed nomination was a bruising political battle, the scars from which have not yet healed. It dramatically changed the mores of Senate consideration of Supreme Court nominees, and for the worse. Yet it is also clear that a Justice Bork would have been very different from Justice Kennedy.
One vote out of nine can make a big difference. Just consider the Supreme Court’s rulings of the past three days. It is not hard to imagine that many of the court’s rulings this week would have been very different had a Justice Merrick Garland been on the court rather than a Justice Neil Gorsuch. Indeed, Senate Majority Leader Mitch McConnell has reportedly been celebrating just that.
Were there a Justice Garland instead on the court this week, President Donald Trump would have very likely not have been able to boast of a “tremendous victory” in Tuesday’s immigration cases. Nor would the court have likely decided Wednesday, overruling a 40-year-old precedent, that the First Amendment prevents government workers from being required to pay for collective bargaining.
The same will be said about future Supreme Court rulings with Justice Kennedy’s absence on the court. That is why Justice Kennedy’s most momentous decision for the Supreme Court may prove to be his decision today to leave the court at this particular moment in the nation’s history.
Deciding when to resign from the court cannot be easy and personal factors may of course sometimes compel it. Yet with the delivery of his formal letter of resignation to the White House Wednesday afternoon, the justice has provided an opportunity for an embattled President, who is under the cloud of a criminal investigation by a special counsel, to shape the court for decades.
And unlike when Kennedy was himself nominated, the Senate today appears to lack a meaningful check on assertions of presidential power, especially with the disappearance of the filibuster.
Justice Kennedy deserves a nation’s thanks for his 40-plus years of service on the federal bench and three decades on the nation’s highest court. But his departure now is not good news. It is both deeply unsettling and worrisome as we await the President’s nominee to replace him and the Senate confirmation hearings.