Whoever is familiar with the criminal justice system in America should know a thing or two about Justice Kennedy Anthony. He was born Anthony Mcleod Kennedy in 1936 and studied at Stanford University and Harvard where he got his BA and LLB respectively. At the moment he is an Associate Justice of the Supreme Court of the United States of America. He was sworn in, in a ceremony in 1988 after being nominated for court by the then President of the United States of American, Ronald Regan.
He’s been the swing vote on many cases brought to the Robert court, since 2006. He has swung the votes in many very important and high profile cases brought to the Supreme Court. Some of those high profile cases include abortion cases. Roe vs. Wade, planned parenthood v. Casey. And also ruling involving gay rights in Romer v. Evans, Lawrence v. Texas, Obergefell v. Hodges, just to mention a few.
He’s a member of the Republican Party and also a conservative, at least most of the times. In this article we’ll be looking at his legacy as relating to those landmark decisions he has given and what to happen to those rulings when he leaves office. He announced his retirement in June 2018, effective July 31. 2018.
The Supreme Court Justice Anthony Kennedy has announced his retirement for next month, by then he’ll be 82 and he thinks it is time for him to leave the bench. Justice Anthony has been one of the longest serving Justices in America, the 14th longest serving justice in America out of 113 Justices. The man has spent over 25 years as a Justice and in this time his power has grown, and in the past 10 years he seemed to have become one of the most powerful men in America. Directly or indirectly the left have also found him to be an important asset or ally, depending on the way you look at it.
It is said that the current US president Donald Trump has been priming the man for retirement, for at least the past 17 months. One of his moves was to nominate Neil Gorsuch to court, and Gorush happens to have been Kennedy’s clerk at a certain point. After the swearing in and during the after party, it is said that Anthony Kennedy swelled with pride as a parent would do at seeing Gorush occupy such a position. This makes Gorush amongst many others a potential nominee for Justice, and in a way, Trump is telling the soon to be retired judge that he has enough sense to pick the right person to fill his position.
Since 2005 Justice Anthony Kennedy has been the deciding factor in a lot of controversial cases. His votes have usually pulled towards the liberal part of the argument. He was the tie breaker in the 5-4 votes which legalized same sex marriage in America, upturned Washington Dc’s ban on hand gun, upheld Roe v. Wade amongst many other ideologically charged cases. For this reason the democrats and other liberals think this is a bleak time for them. This vacancy on the bench will definitely give more ability to the president to perhaps “influence” rulings especially in controversial matters. Donald Trump would most likely nominate someone who is more on the conservative side, and this is something the Democrats are not finding funny and at the moment can do nothing about.
Let’s take a look at some of the decisions that could change with Anthony Kennedy out of the way.
Anthony Kennedy on Gay Rights
His decision in the 1996 case of Romer vs. Evans banned cities and towns from having laws which were against gays, lesbian and bisexual rights, this kind of set the tone for the freedom of expression and relationship which the LGBTQ community enjoys in America.
In 2003 he was also amongst the Judges who decided against a Texas ban on oral and anal sex involving people of the same gender. Kennedy reasoned that it was against the guarantee of the personal liberty of people for a ban to be placed on consensual sexual relationships between two people regardless of their gender. This ruling in effect overturned a 1986 court ruling which upheld Georgia’s Sodomy law.
In 2013 also he was involved in anther landmark decision where he was the tie breaker as usual. He gave a court ruling which mandated the Federal government to respect same sex marriage and accord honour to it, just like they would to a man and woman marriage, this was at the federal level.
And it 2015 he made it impossible for states to create bans for same sex marriages in their state laws. Prior to then, same sex partners could only have civil unions, they couldn’t be called married and as such were denied the rights which accrued to heterosexual couples. So as of today, both heterosexual and homosexual couples are the same in the eyes of the law. This law was passed on the 26 of June 2015. This was to set a precedent for a lot of nations to follow suit, some did and up till today, some haven’t.
Of course there have been attempts at few times to reduce or limit the rights of same sex couples, but we can’t really say if Kennedy has voted in favour of any of those decisions.
Of all his legacies which might be threatened in his absence in court, this is probably the last that will be affected, if it can actually be affected. This is considering the fact that majority of Americans are pro-gay rights, so it is least unlikely that any huge court case might happen in this area.
Effect on Abortion Laws in Kennedy’s Absence
Perhaps the starting point for this discussion is the Roe v. Wade case. In 2016 the Supreme Court gave a ruling against two huge anti-abortion provisions which the state of Texas had passed in 2013. This provisions happened to be part of a bigger anti-abortion law in Texas. It was a huge success for the pro choicers in the state. With Kennedy getting ready to leave the seat there’s a huge possibility that pro-lifers might resume the battle to totally outlaw abortion in all of it forms.
However there’s also a possibly that pro-lifers and perhaps states might go at this subtly, from the side as it were. This could include making it even more difficult for women to get abortions, or perhaps needing certain permits, really no one can say exactly how this will go. The states are bound to get very creative and gradually nip just at the fringes of the ban in form of laws and policies until the Roe v. Wade ruling is null and void. And with Kennedy gone from the seat and probably a hardliner to replace him, it might just go in favour of the anti-abortionists. So this might quicken the whole process.
If an anti-abortion law succeeds, it might just grant states the rights to ban abortion even before the second trimester or an earlier time. Though there is no saying how long it will take to overturn this ruling that is if it will actually be overturned. We however, expect this ruling to take the first major hit once Anthony Kennedy steps out of office.
Prison Policies and Capital Punishment
Anthony Kennedy’s stand on capital punishment and solitary confinement is very clear. The man is against solitary confinement especially for protracted periods of time. This was shown in the case of Ayala vs. Davis, where Justice Kennedy reminded everyone present of the dangers and ills of solitary confinement, in this case Davis the defendant had been held in solitary confinement for the better part of 25 years which he had spent in prison. He believes that the court may have to find alternative means to long term solitary confinement if such matters are brought before it. And if the court can find a good alternative for solitary confinement, then the penitentiary system will be mandated to make arrangements for that and use it. But of course until such a case is brought before the court, a justice can do nothing about it. And it did appear that no case of such, challenging the inhumanity of solitary confinements has been brought to him now that he’s about going though, the chance of getting a ruling challenging solitary confinement has become slimmer.
The issue of solitary confinement still remains unsolved according to experts in matters relating to law and criminology. At this point a lot of research has been carried out into the issue, the mental and physical effects of it, especially amongst those incarcerated have been recorded. And soon enough a federal court will have the opportunity to look into the matter. In this matter of solitary confinement, Kennedy has stuck to his conservative values.
He was also part of a 5 justice ruling which was one of the first victories for inmates in a long time. A lower court had ruled that thousands of prisoners should be released from the California penitentiary system due to overcrowding, stating that this in itself (the overcrowding) was very unconstitutional. The Supreme Court upheld that ruling from a lower court.
He’s also most likely to help upturn the law of capital punishment which is still practised in some states. Kennedy believes the capital punishment violates human dignity, and thus any punishment that cannot be administered without the putting down of someone’s dignity should be done away with.
We are waiting with fingers crossed for who will replace him on that chair, we seem to know the likely people Trump will nominate. Anyway the Senate also has to agree with Trump on who he nominates before that vacancy can be filled.