Resist the conservative tide

Fearing his retirement, liberals hope Anthony Kennedy can help resist the conservative tide

By Ariane de Vogue

It's all about Anthony Kennedy.

As lawyers prepare for a blockbuster Supreme Court term that will feature a constitutional scholar's dream docket of issues, some aren't even trying to hide their game. Lawyers are tailoring their arguments to the justice -- peppering court papers with references to his jurisprudence. If they could, they'd feature his picture on the front page of legal briefs.

That's because everything in some cases depends upon the Ronald Reagan-appointed justice, who some suspect is in his last year on the bench.

It's true especially for liberals facing more possible nominees from President Donald Trump who could help cement an ideological rightward shift that could last for decades.

And they hope Kennedy has that in mind.

"I think Justice Kennedy has got to feel very uncomfortable about the drastic shift to the right that would take place on the court if he steps down and lets Trump pick his replacement," said Michele Jawando, an attorney with the liberal Center for American Progress.

"Justice Kennedy is one of the last things standing between progressive values rooted in the Constitution and the wrecking ball that is this erratic administration," Jawando added. "Another Trump nominee would surely undo Kennedy's powerful legacy that includes protecting abortion rights and recognizing marriage equality for same-sex couples. "

While Kennedy has voted with conservatives on issues such as campaign finance, gun rights and voting rights, he's delivered victories for liberals on issues concerning LGBT rights, abortion restrictions and affirmative action. The court has five Republican-appointed and four Democrat-appointed justices.

"I personally have no doubt that if Justice Kennedy or Justice Ginsburg or Justice Breyer is replaced by President Trump, there will be five votes to overrule Roe v. Wade and Roe v. Wade will be overruled," constitutional scholar Erwin Chemerinsky said at an event hosted by Irvine School of Law last summer.

Will he quit?

Although Justices Ruth Bader Ginsburg and Stephen Breyer are both of retirement age at 84 and 79 years old, respectively, they were appointed by President Bill Clinton and are unlikely to willingly step down during a Republican administration.

But since last winter, sources have told CNN that Kennedy, 81, is considering retirement, although no one is sure when.

Several former clerks traveled to Washington for a regular clerk reunion, last June, many wondering if it might be the last. Kennedy didn't do much to quell the speculation telling the audience of lawyers that the only announcement he had to make concerned how long the bar would remain open.

Asked about his swing vote status last Tuesday, Justice Ginsburg put it simply during an appearance at the 92nd Street Y in New York City.

It's "an awesome responsibility," she said.

Two cases in particular this term showcase Kennedy's role.

One deals with a baker who does not want to make a cake to celebrate the marriage of a same-sex couple because it conflicts with his religious beliefs.

Legal experts say the case will be interesting because it pits two strands of Kennedy's jurisprudence against each other.

"On the one hand, he has been one of the court's leading voices for LGBT rights and same-sex marriage," said Jones Day lawyer Yaakov Roth. "But at the same time, he takes a very expansive view of First Amendment protection and the importance of expression to individual liberty and human dignity."

Another case deals with partisan redistricting -- or the length to which legislators go when they manipulate district lines for partisan advantage.

While the Supreme Court has a standard limiting the overreliance on race in map drawing except under the most limited circumstances, it has never been successful in developing a test concerning the overreliance on politics.

In a 2004 partisan gerrymandering case, the conservatives on the court said they thought the issue should be handled not by the courts but by the political branches. But Kennedy was unwilling to bar all such future claims because he thought a workable standard might emerge in future cases.

The persistent talk of Kennedy's retirement has liberal groups on edge. Although they may not have wanted the court to take up the issue of the Colorado baker, for example, they might prefer to have the issue decided while Kennedy is on the court instead of a potential replacement who would be more conservative.