America after Anthony Kennedy

Anthony Kennedy, the longest-serving member of the Supreme Court, is reportedly considering retirement.

Kennedy has, since at least 2005, been the swing vote on many of the Court’s most ideologically charged decisions, responsible for 5-4 rulings that legalized same-sex marriage, preserved Roe v. Wade, upheld warrantless wiretapping, blew up campaign finance restrictions, overturned DC’s handgun ban, and weakened the Voting Rights Act. That position has made him one of the most powerful people in America for well over a decade now, not even counting the 18 years he shared his position as the Court’s swing voter with Sandra Day O’Connor.

But Kennedy, who turns 82 this July, is already the 14th longest-serving justice (out of 113) in the Court’s history. President Donald Trump reportedly nominated Neil Gorsuch, a former Kennedy clerk, to the Court in part to reassure Kennedy that he could trust Trump with picking his replacement. And it’s not clear that Kennedy will ever get a better time to retire, from his perspective. He’s to the left of Trump on a number of issues, but still a conservative, so he’s unlikely to be pleased with the replacement a Democratic president would pick either.

America after Anthony Kennedy

If Kennedy does retire, the Court’s decisions on issues where he’s a down-the-line conservative — like campaign finance and corruption, most business regulation and voting cases, gun rights, religious liberty, etc. — likely won’t change. There’s already a 5-4 conservative majority on those, so conservative rulings like the ones Kennedy wrote or joined in DC v. Heller, Citizens United, or Hobby Lobby will continue apace.

What will change are rulings on issues where Kennedy has helped maintain a shaky 5-4 center-left consensus. Because of the court’s longstanding principle of stare decisis, or obeying past precedent barring a compelling reason not to do so, some liberal Court achievements are likely to stay. But a Court without Kennedy is substantially more likely to:

  • Overturn Roe v. Wade and allow states (and maybe the federal government too) to ban most or all abortions.
  • Reject challenges to capital punishment and solitary confinement.
  • Rule in favor of religious challenges to anti-discrimination law, and perhaps, in an extreme case, reverse some past Supreme Court rulings on gay rights.
  • Bar government actors from engaging in explicit race-based affirmative action.

And there are likely to be more aftershocks that are hard to anticipate this far in advance.

An America after Anthony Kennedy looks significantly different from America before. The movement against mass incarceration could run into unprecedented resistance from the Court, and the anti-abortion movement could notch its greatest victories in a half-century. (And note that because the issues affected are those with a current liberal majority, the same effects are likely to obtain if one of the Court’s four liberals — Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor — retires or passes away.)

Unless a conservative like John Roberts, Clarence Thomas, Samuel Alito, or Gorsuch announces a shocking early retirement, the next Supreme Court vacancy will give Donald Trump the power to shift jurisprudence on a range of critical issues. It could wind up being the most important part of his legacy.

Abortion in America after Kennedy

Nothing is guaranteed, but if Anthony Kennedy retires under Trump, his replacement will be much likelier to join a decision overturning Roe v. Wade and giving states the ability to ban abortions as early as the first trimester.

This may take years after the replacement’s confirmation; a state would need to pass a law clearly incompatible with the Court’s existing approach to abortion rights and wait for the challenge to reach the Supreme Court before the new justice would have a chance to join a ruling. The anti-abortion movement might choose a more cautious strategy, instead chipping away at Roe with measures that fall short of outright bans. But with Kennedy gone, the votes for an outright reversal of Roe would probably be there.

America after Anthony Kennedy

If Kennedy (or one of the liberals) leaves the court, UC Berkeley law dean and constitutional law expert Erwin Chemerinsky writes, “There almost certainly will be a majority to overrule Roe v. Wade and allow states to prohibit abortions.”

It’s certainly possible that Chief Justice Roberts will decline to join an anti-Roe majority due to precedent and a desire to avoid a massive public backlash, but there are reasons to think it unlikely. Roberts has on two occasions joined decisions overturning past Supreme Court precedent: one was a case on the right to counsel and how it can and cannot be waived, and the other was Citizens United, which sparked massive national outrage.

Roberts voted to overturn precedent anyway, knowing a backlash was inevitable. Indeed, in his concurrence to Citizens United, Roberts suggested that “hotly contested” issues might provide for exceptions from the principle of stare decisis and respect for precedent. Also possible is that instead of decapitating Roe in one blow, Roberts will instead “vote to kill it with 1,000 cuts rather than overturn it outright,” as UC Irvine Law’s Richard Hasen puts it.

Perhaps we’ll see another case like Whole Women’s Health (a 2016 decision where Kennedy joined the Court’s liberals in striking down Texas regulations meant to disrupt abortion provision), but this time the court sides with the state’s restrictions. Perhaps another state takes its 20-week ban to the Supreme Court, which then relaxes Roe and rules that you can bar abortions that early in a pregnancy. Bit by bit, the Court enables states to get more creative and bold in their restrictions, until one day it finally gives up the ghost and announces Roe is dead.

In the aftermath of a reversal, the current gap in abortion services between red and blue states will become even more severe. The pro-abortion rights Guttmacher Institute classifies 29 states as “hostile or extremely hostile” to abortion rights, of which all but two voted for Trump in 2016 (the exceptions are Rhode Island and Virginia). It rated only 12 as supportive, with Montana the only supportive red state.

There are already substantial gaps between states in access to abortion. A study by Guttmacher researchers found that while the average American woman aged 15 to 44 lives fewer than 11 miles from the nearest clinic, that number varies dramatically from state to state and county to county. In Mississippi, the average woman lives 68.8 miles from the nearest clinic. In North Dakota, the number is 151.6. A lot of the variation is just a function of how rural the state is, but the political environment appears to be a significant factor as well.

Overturning Roe would harden these gaps between states, and also open up a vast new market for self-induced abortions. That market already exists. Seth Stephens-Davidowitz, an economist and writer who has conducted research on demand for abortion using Google search data, once told Vox, “I was blown away by how frequently people are searching for ways to do abortions themselves now. These searches are concentrated in parts of the country where it’s hard to get an abortion and they rose substantially when it became harder to get an abortion.”

But while “self-induced” conjures up images of wire hangers and back alleys, the form this will most likely take is greater usage of abortion pills. About a third of all abortions, and a higher share of early-term abortions, are medication abortions now. It’s possible that’s what some of the searches for “self-induced abortion” were about, anyway.

How much do you want to bet that the US market for RU-486, purchased from online pharmacies or other dubiously legal means, will explode in the aftermath of Roe falling?

Prisons and the death penalty in America after Kennedy

Currently, there appears to be a five-justice majority on the Supreme Court for sharply limiting solitary confinement in America. Should Kennedy retire, that majority would evaporate, likely replaced with a harder-line majority that could preserve the practice.

In 2015, Anthony Kennedy filed a concurring opinion in Davis v. Ayala, a death-penalty case in which the Court (joined by Kennedy) sided against the defendant. Nevertheless, Kennedy used his concurrence to unleash a bracing jeremiad against the evils of solitary confinement, in which the defendant had been held for most of his 25-plus years in prison.

”Research still confirms what this Court suggested over a century ago: Years on end of near-total isolation exact a terrible price,” Kennedy wrote. “In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.”

America after Anthony Kennedy

The implication was clear: Kennedy wanted advocates to bring a case challenging the constitutionality of long-term solitary confinement on the grounds that it constitutes cruel and unusual punishment under the Eighth Amendment. He basically dared them to, and suggested that if such a case reached the Court, he’d be inclined to limit the practice.

Sharon Dolovich, a law professor at UCLA and faculty director of the university’s Prison Law & Policy Program, told me in 2016 that solitary confinement was the “one major unresolved issue” in criminal justice “that is definitely going to come up” in the next few years.

It’s a long time coming. At any given moment, about 80,000 to 100,000 people are held in solitary confinement in the US; in many states, the average stint in solitary lasts years. And it’s been that way at least since the 1980s, without any federal court intervention to halt it.

”There’s so much data now — physiological data, psychological data, reentry data — there’s so much data making clear the extended physical, psychological, and emotional trauma that people suffer in extended solitary confinement, it would be so easy for the Court just to point to it all and conclude there’s an objective harm,” Dolovich said.

Jonathan Simon, a law professor and director of the Center for the Study of Law and Society at UC Berkeley, also speaking in 2016, told me that solitary confinement is on “the verge of being found unconstitutional, at least in its most excessive forms.” Just what “excessive” means there is, naturally, a matter of debate, and Simon cautions that the Court could err on the side of giving prisons too much leeway.

He noted that Ashker v. Brown, a recent case challenging solitary confinement in California that ended in a settlement rather than reaching the Supreme Court, “involved a class of inmates that had been held more than 10 years, and the settlement will still allow people to be held up to five years, and even after that they can still be held in solitary if they’re given programming and special services.” By contrast, the United Nations special rapporteur on torture has called for an absolute ban on solitary confinement lasting 15 days or more. “I’m not sure Kennedy or any justice would go nearly that far,” Simon says.

But without Kennedy on the court, a ruling going even as far as a five-year maximum becomes less likely.

Solitary confinement is not the only case where a more conservative justice could make a difference. In 2011, Kennedy wrote a 5-4 decision upholding a lower court order that California release tens of thousands of prisoners to reduce overcrowding, which the state itself admitted was unconstitutional. It was, Simon told me, “the first prisoners’ rights decision to come down in favor of the prisoner in a long time. It ended mass incarceration in California.” More decisions like that could come if Kennedy stays on the court