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June 27, 2018

Justice Anthony Kennedy has announced his retirement ... which means a lot for the future of sentencing jurisprudence and so much more

After a few years of speculation, Justice Anthony Kennedy has now finally announced his retirement.  This is huge news for all areas of law, and starts another round of speculation about who Prez Trump will name to replace him on the Court.  Here is a USA Today story with some context:

Supreme Court Justice Anthony Kennedy is retiring, giving President Trump and Senate Republicans an opportunity to create a solidly conservative court that could last for decades. Kennedy's long-rumored decision to step down July 31 will touch off a titanic battle between conservatives and liberals in the nation's capital, on the airwaves, and in states represented by key senators whose votes will be needed to confirm his successor.

Kennedy, 81, has held the most important seat on the court for more than a decade: He is the swing vote on issues ranging from abortion and affirmative action to gay rights and capital punishment, often siding with the court’s more liberal justices....

Kennedy’s departure will leave a hole in the middle of the court that Republicans are eager to fill with a more reliable conservative. Trump has said he would choose from a list of 25 potential nominees assembled with the help of the conservative Federalist Society and Heritage Foundation. That list was expanded in November to include Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit – a front-runner for the seat who, like Gorsuch, once clerked for Kennedy....

Among the other judges on Trump’s list most often mentioned as potential Kennedy replacements are Thomas Hardiman of Pennsylvania, who serves on the U.S. Court of Appeals for the 3rd Circuit, and Raymond Kethledge of Michigan, who serves on the 6th Circuit.  More intriguing are fresh faces such as newly confirmed federal appeals court judges Amy Coney Barrett of Indiana and Amul Thapar of Kentucky.

Kennedy’s ultimate decision to wait until 2018 gave the Supreme Court time to settle into a new pattern with Gorsuch shoring up its right flank. Had he waited until next year, it would have given Democrats a chance to regain the Senate majority this November and block Trump's nominee.  Republicans have a 51-seat majority now, giving them the ability to withstand Democratic opposition.  The traditional 60-vote threshold for high court nominees was abolished last April when Democrats threatened to block Gorsuch’s confirmation, prompting Senate Republican leader Mitch McConnell to push through a rules change allowing justices to be confirmed with simple majority votes.

Still, the upcoming battle over Kennedy’s replacement is certain to be one of the most intense ever, with conservative and liberal interest groups poised to spend tens of millions of dollars in advertising and grass-roots activity. Much of the liberals’ effort likely will focus on moderate GOP senators such as Maine’s Susan Collins and Alaska’s Lisa Murkowski, who might be wary of adding a hard-line conservative and risking decades-old precedents such as Roe v. Wade, which legalized abortion in 1973. Conservatives will focus on moderate Democrats running for re-election in Trump country, such as Indiana's Joe Donnelly, North Dakota's Heidi Heitkamp and West Virginia's Joe Manchin.

That battle is likely to play out over the next few months. Republicans are determined to fill Kennedy’s seat before the court’s 2018 term begins in October, as well as the November elections.

This USA Today piece rightly mentions capital punishment as an area in which Justice Kennedy has often been a swing vote, and that might be expanded to include Eighth Amendment jurisprudence more generally in light of his decisions in Graham and Miller and Montgomery. Justice Kennedy has also tended to be a key fifth vote on non-constitutional issues as well, though he has generally been (along with Justice Breyer) a long-standing opponents to criminal defendants' Sixth Amendment rights as articulated in the Apprendi-Blakely line of cases.

In some coming posts, I will review some of Justice Kennedy's biggest sentencing opinions as well as some of the sentencing history of some of the top candidates to replace him. But for now I will be content to thank Justice Kennedy for his service and to wish him a happy and healthy retirement.

June 27, 2018 at 02:13 PM | Permalink


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