It’s not just abortion: 5 issues likely to be affected by Kennedy’s exit
When it comes to issues like abortion and affirmative action, it has seemed for years that Justice Anthony Kennedy was holding back the tide. Now, his retirement may unleash a crashing wave.
The departure of the relatively moderate Kennedy from an ideologically polarized court has the potential to upend legal precedent on a slew of hot-button issues, but the most significant impact is likely on abortion rights, where Kennedy stood squarely with the court’s liberals to defend Roe v. Wade, the 1973 ruling that upheld a woman’s right to choose.
Story Continued Below
If the court picks up a new vote hostile to abortion rights, Roe probably won’t be overturned right away, but the court could be given an opportunity to consider a reversal within years. Kennedy’s exit also seems certain to accelerate the erosion of access to abortion by blessing a series of state laws limiting when and where women can terminate a pregnancy.
Major changes could also be coming in other areas where Kennedy, an appointee of President Ronald Reagan, has been counted as a crucial vote on the court, including affirmative action, gay rights, voting rights and the application of the death penalty to minors and the intellectually disabled.
On some issues, like affirmative action, the court’s rulings from prior decades already seemed to be on life support and may now be all but dead if President Donald Trump succeeds in adding another hard-core conservative to the court. But inertia and the court’s aversion to rapid reversals of its precedents could save some 5-4 rulings in which Kennedy carried the day, like the landmark 2015 decision legalizing same-sex marriage.
Here’s a look at the legal hot spots in the wake of Kennedy’s retirement, as well as some areas where the status quo may survive:
Kennedy’s retirement has put the future of abortion rights in the United States on the line.
During his campaign, Trump promised to appoint “pro-life” judges to the Supreme Court — a pivotal pledge that won him the backing of anti-abortion voters. Now, he’ll have the opportunity to replace Kennedy with a nominee who could reverse or dramatically alter the landmark ruling.
Kennedy’s replacement would probably serve as the deciding vote on an abortion decision, with the other eight justices evenly divided today. The court could determine not only when during a pregnancy abortion is legal but also what kind of prohibitions the states can place on the procedure.
With Trump’s campaign pledge in mind, anti-abortion groups have been eagerly anticipating a new Supreme Court nominee.
“I’ve very confident it will be someone who is a strict constitutionalist,” said Marjorie Dannenfelser, president of the Susan B. Anthony List, an anti-abortion group. “That means someone who recognizes the life in the law, so I think that’s very likely either with this judge or the next, we’ll see the erosion and final overturn of Roe v. Wade.”
Rep. Steve King (R-Iowa) encouraged his state this year to pass a ban on abortion as soon as a heartbeat is detected — a bill that is flatly unconstitutional under current law — with hopes that it would be challenged in court and potentially serve as the vehicle to undo Roe. The court challenge is pending.
“I wrote the heartbeat bill to go before the court after the next appointment at the Supreme Court,” King told POLITICO earlier this year in describing his still-unpassed federal version of the bill.
The court could get an opportunity to address abortion rather quickly. In addition to the lawsuit against the Iowa bill, suits are pending over a state prohibition at 15 weeks of pregnancy as well as state regulations of abortion providers. In recent years, the Supreme Court has turned down opportunities to revisit Roe by declining cases that challenged states’ laws to make abortion illegal after 20 weeks of pregnancy.
Kennedy’s legacy is closely tied to abortion rights. In 1992, he famously switched his vote in support of upholding the 1973 Roe decision in Planned Parenthood v. Casey, the first major opportunity the Supreme Court had to undo the landmark decision. Since then he has ruled in support of abortion rights, including a 2016 decision to strike a series of Texas anti-abortion laws. But in 2007, he was with the majority in a ruling to uphold the ban on so-called partial-birth abortions.
If the court were to strike down the Roe decision, states would most likely be able to determine whether and in what situations abortion is legal. A patchwork would likely form, with conservative states implementing bans or severe prohibitions on the procedure.
Eight states — three of them led by Republican governors — already have laws on the books that preserve a woman’s ability to get an abortion in the event that Roe is overturned, according to the Guttmacher Institute, a nonprofit organization that supports abortion rights. They are California, Connecticut, Delaware, Hawaii, Maine, Maryland, Nevada and Washington State.
Louisiana, Mississippi, North Dakota and South Dakota already have laws that automatically ban abortion if the federal law is struck down. Eight also have statutes that express their intent to restrict abortions to the maximum extent by the Supreme Court, though some of the states overlap — Arkansas, Illinois, Kansas, Kentucky, Louisiana, Missouri, North Dakota and Ohio. Two more states, West Virginia and Alabama, have 2018 ballot measures to say there is no right to an abortion in the states’ constitutions.
2. Affirmative action
Kennedy was seen as the sole voice among the court’s current Republican appointees who was open to race-based affirmative-action plans for public colleges and universities. However, he did not seem enthusiastic about the practice, and rarely seemed to find an instance in which he thought the programs were tailored enough to pass constitutional muster.
But in a surprise decision in 2016, Kennedy wrote a 4-3 majority opinion upholding the University of Texas’ program aimed at achieving diversity in its undergraduate student body. Still, the slender majority on a court operating shorthanded after the death of Justice Antonin Scalia and the recusal of Justice Elena Kagan, demonstrated that affirmative action was hanging by a thread that Kennedy appeared to be holding.
If Trump’s selection is in line with conservative legal thinking on the issue, he or she seems virtually certain to sound the death knell for use of race and ethnicity in public-sector admissions. But even bigger fights are brewing.
Anti-affirmative-action activists are pursuing a lawsuit against Harvard, arguing that the elite school discriminates against Asian-Americans in order to meet certain goals for the racial makeup of its student body. If that case gets before a Supreme Court where Kennedy is swapped for a conservative successor, affirmative action could be dead not only at public schools but also at private ones whose practices have largely escaped legal scrutiny until now.