Writing this reminded me I only have to work about 50 more years until I retire.
Justice Anthony Kennedy began his tenure on the Supreme Court in February 1988. He was appointed to the Court by President Ronald Reagan. For much of his time spent on the Court, Justice Kennedy has been the “swing vote.” This means that Justice Kennedy has often been the person that decides whether the more conservative position or the more liberal position would get the majority ruling. Justice Kennedy wrote the majority position in some of the most contentious, ground breaking cases seen by modern jurisprudence. These cases are: Planned Parenthood v. Casey (1992); Bush v. Gore (2000); Lawrence v. Texas (2003); Roper v. Simmons (2005); Citizens United v. Federal Election Commission (2010); Obergefell v. Hodges (2015). A few of these cases are detailed below. Do you stand with the majority?
Planned Parenthood v. Casey: Abortion
- Case: Pennsylvania legislature changed its abortion law in 1988 and 1999. Under the new provisions, the law required informed consent and a 24 hour waiting period before the procedure could be conducted. Additionally, the provisions required the following: if a minor sought an abortion, she must have the consent of a parent; and a married woman seeking an abortion had to indicate that she notified her husband of her intention to abort.
- Question: Can a state require women to obtain informed consent, wait 24 hours, gain parental approval, or notify their husbands without violating their right to an abortion under Roe v. Wade (1973)?
- Ruling: The Court imposed a new burden on determining the legality of abortion restrictions. The Court found that if a restriction caused an “undue burden,” then it was unconstitutional. An “undue burden” is defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” In this case, the provision requiring married women to notify their husbands of their intention to abort was deemed an “undue burden.”
- Impact: This case is one of many that challenges the legality of Roe v. Wade and a woman’s right to an abortion. While this ruling did not overturn the Roe v. Wade ruling, many saw it as an erosion of right guaranteed therein. This is particularly important because it shows the contentiousness of the right to an abort, and begs the question: When this issue inevitably comes up again, will Roe v. Wade still be upheld?
Bush v. Gore: Election Results
- Case: After serious confusion (and contest) over the vote count in parts of Florida following the 2000 Presidential election, the Florida Supreme Court ordered lower courts to count the ballots by hand. Additionally, it required that all Florida counties must recount ballots that did not indicate a vote for president. The recount was ordered because enough ballots were in contest that the results of the election were at stake. Governor George Bush and his running mate, Richard Cheney, sought an emergency Supreme Court petition to keep the Florida Supreme Court from releasing their findings.
- Question: Could the Florida Supreme Court make a new election law without violating Article II Section 1 Clause 2 of the United States Constitution*? Do standardless manual recounts violate the Equal Protections Clause of the Constitution?
*Article II Section 1 Clause 2 calls for each person in the country of voting eligibility be able to vote and have their vote counted equally to that of their fellow voters.
- Ruling: The Court found the Florida Supreme Court’s recount was unconstitutional because the Equal Protections Clause guarantees individuals that their ballots cannot be devalued by “later arbitrary and disparate treatment.” Further, the Court found that due a slue of procedural difficulties, no constitutional recount could be executed in the time remaining.
- Impact: This one is pretty funky. The Court made it clear that this decision was applicable to this case only. Dissenting Justices disagreed with the decision on a variety of grounds, including: the decision of the Florida Supreme Court was right, because every vote must be counted; and that citing timing as an issue was wrong, because where constitutional rights are at stake, time in not a factor.
Lawrence v. Texas: Gay Rights
- Case: Houston police entered the home of John Lawrence in response to a reported weapons disturbance. When the police entered Mr. Lawrence’s home they encountered him engaging in a consensual sex act with another adult male, Tyron Garner. The men were both arrested and convicted under a Texas law forbidding two people of the same sex to engage in certain intimate sexual acts.
- Question: Does the Texas law, which makes certain intimate actions between same sex couples illegal, but does not criminalize the same actions by different-sex couples, a violation of the Fourteenth Amendment’s guarantee of equal protections under the law?
- Ruling: The Texas law ran ajar to the Due Process Clause of the Fourteenth Amendment. Justice Kennedy wrote, “Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.” Justice Kennedy continued, “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”
- Impact: This case helped pave the way towards the Supreme Court acknowledging same-sex marriage in Obergefell v. Hodges.
*Fourteenth Amendment: provides equal protections and right to due process. “…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.” Due process means the State cannot deny anyone those stated rights without taking a legal route. (ex. The government cannot take your property without compensating you or taking you to trial. Basically, they need a legal basis to strip you of one of those rights.)
Roper v. Simmons: Death Penalty
- Case: Christopher Simmons was sentenced to death when he was 17. He appealed this conviction up to the Missouri Supreme Court, which found that the opinion of the nation had changed since the United States Supreme Court ruled on the use of death penalty for a minor. The government contested this ruling by the Missouri Supreme Court on the grounds that allowing a state court to overturn a Supreme Court decision was dangerous.
- Question: Is the execution of a minor a violation of the prohibition of “cruel and unusual punishment” found in the Eighth Amendment and applied to the states through the Fourteenth Amendment’s guarantee that rights enumerated in the Constitution apply to the states?
- Ruling: The Court narrowly decided that the execution of a minor does constitute “cruel and unusual punishment,” therefore violating the prohibition of such punishment under the Eighth Amendment. Additionally, in his opinion, Justice Kennedy pointed to “overwhelming” international opinion against the juvenile death penalty.
- Impact: This has some pretty significant impact, not just in the US, but across the world. Prior to this ruling, the United States among a select few of countries executing minors. Further, in some United Nations Human Rights agreements, the UN found that executing a minor was a violation of Human Rights.
So what happens now?
The real concern with Justice Kennedy retiring is with those who adopted a progressive interpretation of the Constitution.** Should President Trump select another conservative Justice, jurisprudence could fall firmly on the side of conservationism for a long time to come. That being said, Justice Kennedy has recently found with the conservative Justices on a variety of cases (travel ban case), so we can speculate whether he would have continued on a conservative path if he remained on the bench. (Basically, were conservatives going to win the rulings whether Justice Kennedy was there or not?)
Democratic Senators are saying the President should respect the people and wait for the November election results before he appoints a new Justice, noting that the Republicans called for the same action after the passing of Justice Scalia towards the end of President Obama’s last term. Just as the Republicans wanted the vacancy to be a point of issue during the 2016 Presidential election, the Democrats want it to be a point of issue during this midterm election.
**There are several very different interpretations of the Constitution. As I explore more cases, I will point out what some of those interpretations are.
(Please note: I do not own the photo at the top of this post.)
In Layman's Terms 