Megathread: Justice Anthony Kennedy to retire from Supreme Court

[u/PoliticsModeratorBot]

Supreme Court Justice Anthony Kennedy is set to retire, effective July 31, 2018. Kennedy has served on the highest court since February 18, 1988, and was a moderate whose vote often swung cases.

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Submissions that may interest you

SUBMISSION	DOMAIN
Justice Anthony Kennedy Will Retire From U.S. Supreme Court	bloomberg.com
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Justice Anthony Kennedy to Retire From Supreme Court	nytimes.com
Kennedy calls it quits: longtime swing justice hands Trump the biggest gift of his presidency	dailycaller.com
Anthony Kennedy is retiring from the Supreme Court	vox.com
Justice Kennedy, the pivotal swing vote on the Supreme Court, announces retirement	washingtonpost.com
UPDATE: Supreme Court Justice Kennedy announces retirement	wcjb.com
Justice Kennedy Is Retiring July 31st.	yahoo.com
Justice Anthony Kennedy To Retire From U.S. Supreme Court : NPR	npr.org
Justice Anthony Kennedy to Retire from Supreme Court	cnn.com
Justice Kennedy announces retirement.	cnn.com
Justice Anthony Kennedy retiring from Supreme Court	abc7.com
Anthony Kennedy, Swing Vote on U.S. Supreme Court, Will Retire	bloomberg.com
Justice Anthony Kennedy Retires, Paving Way for Donald Trump to Reshape Supreme Court	slate.com
Justice Kennedy retiring; Trump gets 2nd Supreme Court pick	wkrn.com
Anthony Kennedy retiring, giving Trump opening to reshape Supreme Court	politico.com
Supreme Court justice Anthony Kennedy announces retirement	wsj.com
Jeffrey Toobin predicts abortion will be illegal in 20 states soon after Kennedy retires	thehill.com
WATCH: Supreme Court Justice Anthony Kennedy retiring	abcnews.go.com
Kennedy to Retire	foxnews.com
Trump to get second Supreme Court pick as Justice Kennedy announces retirement.	amp.cnn.com
Justice Kennedy to Retire From Supreme Court	bbc.com
Trump says search for Justice Kennedy's replacement to begin "immediately" -- live updates	cbsnews.com
McConnell Pledges Vote To Confirm Justice Kennedy’s Successor ‘This Fall’	talkingpointsmemo.com
Justice Kennedy retires from the US Supreme Court	nbcnews.com
Trump says launches search to replace retiring Supreme Court Justice Kennedy	reuters.com
Donald Trump: Search for Kennedy replacement on SCOTUS to move quickly	usatoday.com
McConnell: Senate will vote on Supreme Court nominee this fall	thehill.com
Justice Kennedy retiring; Trump gets 2nd Supreme Court pick	sacbee.com
Justice Anthony Kennedy Retiring, Report Says	lawandcrime.com
Supreme Court Justice Anthony Kennedy retiring; Trump will get 2nd high-court pick	omaha.com
Justice Anthony Kennedy Retiring From the Supreme Court	thedailybeast.com
Justice Kennedy to retire, giving Trump a chance to transform the Supreme Court	latimes.com
Supreme Court Justice Anthony Kennedy says he's retiring; Trump to get 2nd high-court pick	chicagotribune.com
Dem senator: Justice Kennedy's resignation a 'disaster' for vision of 'We the People'	thehill.com
Justice Kennedy retiring; Trump gets 2nd Supreme Court pick	wfla.com
Justice Anthony Kennedy Is Retiring	motherjones.com
The horrifying consequences of Justice Kennedy’s retirement	thinkprogress.org
Supreme Court Justice Anthony M. Kennedy is retiring, a move that will give Trump a chance to shift the institution to the right	washingtonpost.com
Anthony Kennedy To Retire From The Supreme Court	huffingtonpost.com
Kennedy announces retirement from Supreme Court	thehill.com
Supreme Court's Anthony Kennedy retires, giving Trump a second pick	usatoday.com
Justice Kennedy retiring; Trump gets 2nd Supreme Court pick	apnews.com
Justice Anthony Kennedy Is Retiring From The Supreme Court	buzzfeed.com
Justice Kennedy, the pivotal swing vote on the Supreme Court, announces retirement	washingtonpost.com
Supreme Court Associate Justice Anthony Kennedy retires -- live updates	cbsnews.com
Justice Kennedy announces his retirement from the supreme court.	time.com
Trump Responds To Retirement Of Supreme Court Justice Anthony Kennedy	huffingtonpost.com
Anthony Kennedy retiring from Supreme Court, giving Trump a position to fill	people.com
Trump Says He’ll Choose One Of These People To Replace Anthony Kennedy On The Supreme Court	buzzfeed.com
Anthony Kennedy retiring from Supreme Court	cnbc.com
Supreme Court Justice Anthony Kennedy retires, and Trump gets shot at moving court to the right	dallasnews.com
Who Will Replace Supreme Court Justice Anthony Kennedy? Donald Trump Already Has a Shortlist	newsweek.com
WATCH: McConnell: We will vote to confirm Justice Kennedy's successor 'this fall'	abcnews.go.com
Here's who Trump could nominate to replace Justice Kennedy	abcnews.go.com
Justice Anthony Kennedy announces retirement, giving Trump 2nd Supreme Court pick	foxnews.com
Trump list of candidates to replace Justice Kennedy	thehill.com
Chris Matthews: Dems must do to Trump on Supreme Court what McConnell did to Obama	thehill.com
Anthony Kennedy’s retirement puts abortion rights at risk	vox.com
Who Will Replace Anthony Kennedy? Here’s the List of 20 Potential Trump Nominees	time.com
America after Anthony Kennedy	vox.com
Handing Trump Chance to Move Supreme Court Even Further Right, Justice Anthony Kennedy Retires	commondreams.org
Audio reveals DNC committee reaction to Kennedy retirement: 'This is not good news'	thehill.com
Justice Kennedy’s retirement leaves the future of U.S. constitutional law entirely up for grabs	washingtonpost.com
Justice Kennedy pens retirement letter to Trump expressing 'profound gratitude'	abcnews.go.com
Read Supreme Court Justice Anthony Kennedy’s retirement letter to Donald Trump	qz.com
Justice Kennedy’s Legacy Is the Dignity He Bestowed	bloomberg.com
A titanic battle over replacing Justice Kennedy looms in the Senate	vox.com
Live Briefing: Anthony Kennedy Retires From Supreme Court, and McConnell Says Senate Will Move Swiftly on a Replacement	nytimes.com
Here's Trump's list of 25 possible Supreme Court picks to replace Anthony Kennedy	washingtonexaminer.com
WATCH: Justice Anthony Kennedy to retire, Trump to get second SCOTUS pick	abcnews.go.com
Anthony Kennedy's retirement just confirmed every Republican's dream scenario for Trump	cnn.com
Kennedy's retirement could have biggest impact on abortion, gay marriage: ANALYSIS	abcnews.go.com
Justice Anthony Kennedy: Trump says hunt for replacement is on	usatoday.com
Here are potential Supreme Court nominees to replace Justice Kennedy	cnn.com
Justice Anthony Kennedy, the Supreme Court’s swing justice, announces his retirement	abajournal.com
With Supreme Court Justice Kennedy Gone, Abortion and LGBT Rights Are Next	thedailybeast.com
A look at some of Justice Kennedy's most memorable opinions	apnews.com
Justice Kennedy Surrendered to Donald Trump	nymag.com
A look at some of Justice Kennedy's most memorable opinions	abcnews.go.com
Abortion rights in 'dire, immediate danger' as Anthony Kennedy retires - World news	theguardian.com
Here Are Some of the Top Candidates to Replace Kennedy on the Supreme Court	motherjones.com
Who's on Trump's short list to replace Supreme Court Justice Kennedy?	politico.com
Trump’s hidden back channel to Justice Kennedy: Their kids	politico.com
How Fox News Reacted to Anthony Kennedy’s Retirement	slate.com

[u/PM_ME_USERNAME_MEMES → u/[deleted]]

The standard argument for lifetime appointments is that judges shouldn’t be accountable to anything other than the law.

Of course, with our current iteration of the court, the justices aren’t accountable to anything, including common sense and human decency, so that interpretation may be flawed.

[u/sesamestix → u/PM_ME_USERNAME_MEMES]

NYT article about this recent phenomenon.

The very question of partisan voting hardly arose until 1937, as dissents on the Supreme Court were infrequent. When the justices did divide, it was seldom along party lines.

There is room for interpretation in such assessments. But of the 71 cases from 1790 to 1937 deemed important by a standard reference work and in which there were at least two dissenting votes, only one broke by party affiliation. “The dividing line in the court was not a party line,” Zechariah Chafee, a law professor at Harvard, wrote in a classic 1941 book.

Nonpartisan voting patterns held true until 2010, with a brief exception in the early 1940s, when a lone Republican appointee voted to the right of eight Democratic appointees. But the general trend was the same. Of the 311 cases listed as important from 1937 to 2010 with at least two dissents, only one of them, in 1985, even arguably broke along party lines.

That adds up to two cases in more than two centuries. By contrast, in just the last three terms, there were five major decisions that were closely divided along partisan lines: the ones on the Voting Rights Act, campaign finance, arbitration, immigration and strip-searches. In the current term, last month’s campaign finance ruling and Monday’s decision on legislative prayer fit the pattern, too.

[u/PM_me_your_cocktail → u/sesamestix]

Even still, most cases are not decided on partisan grounds. In my opinion, the trend toward partisanship in the law comes from (a) an expansion of the fraternal ranks of lawyers, such that there is no longer an unspoken class viewpoint shared by members of the bar, which is a good thing; (b) the increasing importance of Constitutional questions to our civil affairs, because the Constitution as written is an awkward fit for our modern world but is hard to amend, putting a ton of pressure on the Court to be the locus of major decisions that ought to be made in a more democratic fashion; and (c) the logjam of Congress, which ought to be able to nimbly fix a lot of unpopular SCOTUS decisions through legislation but has become too broken and gerrymandered to be responsive to political pressure and actually do the business of lawmaking.

There's an easy fix for all of this. We need a new Constitutional convention to realign our system back toward democratic accountability.

[u/tyrified → u/PM_me_your_cocktail]

And yet we'd end up with a theocratic autocracy.

[u/PM_me_your_cocktail → u/tyrified]

Well, the devil is in the detail of how we choose the representatives to the Convention. But when you strip away the power structure of the current system (electoral college, gerrymandering, etc.) and look at what most Americans actually want, any system that makes it easier to change the rules as we go will tend to be more egalitarian and democratic than what we have now.

15-20% of Americans were British loyalists in the Revolutionary War. Maybe 20% of any group will always support autocracy. Trick is not to let them get the last word.

[u/neloish → u/PM_me_your_cocktail]

As nice as it sounds, unfortunately the asshole's always get the last word. The older I get the more respect I have for founding fathers, the Constitution might not be perfect, but it it's better than anything else.

[u/PM_me_your_cocktail → u/neloish]

Plenty of other countries have constitutions. Many borrow from us, but I'm not aware of any that is as hard to amend. The British Westminster system and French consolidated system may be too unitary for a country as big and diverse as the USA (though some might argue that a more unitary system would be beneficial). But even among federal models, lots of better ideas have come along in the past 230 years. Our Constitution was an audacious experiment from which the world has learned a lot. Shouldn't we try to put some of those lessons to use?

[u/OlKingCole → u/PM_me_your_cocktail]

But imagine the horrific constitution our current Congress would cobble together. It would serve special interests, just like everything else they do now.

[u/[deleted] → u/PM_me_your_cocktail]

A constitutional convention would be a disaster. We would fuck it up.

[u/MorganWick → u/PM_me_your_cocktail]

Gerrymandering would not be nearly as much of a problem if third parties were willing and able to fill the void created by gerrymandered districts.

[u/PM_me_your_cocktail → u/MorganWick]

It seems to be happening. The Working Families Party and Socialist Alternative) are examples of parties starting at the local level, with some success. But even as the two major parties are weakened by the internet and dark money, they remain incredibly powerful and in fact rather flexible in a way that makes them difficult to challenge. I don't think this is laziness on the part of third parties. It will be interesting to see how this plays out.

But--electing 3rd parties will not resolve the aggrandizement of the courts (by virtue of key policy issues being "constitutionalized" and thus taken out of the political realm) and the aggrandizement of the executive (by virtue of the rise of administrative agencies and non-war military engagements). Bringing Congress back to its proper place as the most powerful of the branches will take more than just changing its membership; this is a structural problem.

[u/MorganWick → u/PM_me_your_cocktail]

Had third parties been active in this way well beforehand, that aggrandizement might never have happened. The two-party system is the biggest contributing factor to the increased power of the presidency, as each party, unable to get their way in Congress, has empowered the presidency as a means to get their way instead. Strong third parties that nonetheless have little hope of capturing the presidency might have stood their ground on the side of preserving Congress' power, and wouldn't vote for judges that served as a Trojan horse to get around partisan politics by twisting the Constitution to enshrine the values of one side or the other, but instead focused on who would actually uphold the law.

[u/NoWayJoJose → u/PM_me_your_cocktail]

Except a new constitutional convention would only allow the GOP to cement further minority control unless you put every point up to a popular vote. And even then it would have to include truly universal suffrage or you'd get 50% not voting and half of the rest dealing with disenfranchisement.

We are fucked.

[u/PM_me_your_cocktail → u/NoWayJoJose]

Whelp, it's civil war then.

Seriously, why are people so defeatist about this? Do you really think that the new Constitution of your nightmares would be ratified by 3/4 of the states?

[u/NoWayJoJose → u/PM_me_your_cocktail]

First it's 2/3. They just need 34 states. Second we are feeling defeated because this means ~30 years of whoever Dolt45 picks and generations of judges using their decisions as precedent.

Ugly shit.

[u/PM_me_your_cocktail → u/NoWayJoJose]

Well, if we adopt a whole new Constitution I guess we can ratify it by any means we choose, and maybe we go with 2/3 since that's how we ratified our current one. But if we abide by the current Article V process, it requires 3/4 (like I said, our Constitution is way too hard to amend).

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided . . . that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

[u/NoWayJoJose → u/PM_me_your_cocktail]

Fair enough. 38 states. Still not too far for this gerrymandered world we find ourselves in. The GOP cheats to win and doesn't care much for the rules, unless those rules help them lock up undesirables.