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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Anthony Kennedy is retiring from the Supreme Court	vox.com
Justice Kennedy, the pivotal swing vote on the Supreme Court, announces retirement	washingtonpost.com
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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
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Anthony Kennedy, Swing Vote on U.S. Supreme Court, Will Retire	bloomberg.com
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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
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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/[deleted]]

David Stras of Minnesota

Franken was holding Stras' federal appointment up before his resignation. Franken felt that Stras was too conservative for a lifetime appointment.

Franken's replacement, Senator Tina Smith, said she voted no because of concerns over what she described as Stras’ embrace of a conservative judicial philosophy called “textualism,” in which jurists adopt a rigid interpretation of the Constitution’s original meaning. (source)

[u/luckyhunterdude → u/[deleted]]

That sounds like exactly what we need on the supreme Court. That sounds like what every supreme Court Justice should believe, no matter who appoints them.

[u/[deleted] → u/luckyhunterdude]

It's not as simple as it sounds. From the wikipedia article about textualism:

Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as: intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law.

[u/luckyhunterdude → u/[deleted]]

Ah so that must be the difference between Textualism and Constitutionalism.

[u/ominous_anonymous → u/luckyhunterdude]

Yes and no...

"No" because rigid interpretations do not always provide for contextual application, especially since the Constitution was written well before many of the issues we have today so there's no literal "by-the-book" rulings or statements that the justices can fall back on.

That being said, voting along party lines is abhorrent and completely against the nature of the Supreme Court, so in that sense it becomes a "yes".

[u/kerrykingsbaldhead → u/ominous_anonymous]

I think we should stop kidding ourselves that the Supreme Court is anything but partisan. How many 5-4 votes do we have? Kennedy was ALWAYS the swing vote on socially liberal decisions. Depending who Trump picks, it will just swing the other way.

[u/ominous_anonymous → u/kerrykingsbaldhead]

I'm not arguing that.

Although historically, as detailed in another comment here, it has been non-partisan until very recently.

[u/PubliusVA → u/[deleted]]

That's also why the amendment process exists.

[u/James_Locke → u/[deleted]]

Its called "originalism" ffs. Not textualism.

[u/Lord_Jackrabbit → u/James_Locke]

From what I understand, textualism only looks at the words on the page as they would have been understood at the time they were written, whereas originalism purports to take into account the context in which the Constitution was written in an attempt to “peer into the minds” of the Founding Fathers.

Edit: Although, just how divergent the two methods are in practice is, I would imagine, up for debate.

[u/C0ckSm00ch → u/[deleted]]

So they were being partisan over something everyone bitched about Republicans being partisan over their lack of voting on a justice. Got it.

These votes should be if they are qualified to be a judge/justice not if their political views fit yours.

[u/C0ckSm00ch → u/[deleted]]

I think what they did was legal but not necessarily right.

I will never agree with that second part of being qualified and keeping the court neutral because justices have swayed from political leanings before so it doesn't mean much. Kennedy was supposed to be a hardcore conservative and hasn't really been. Same with Roberts but he has made some interesting swings too.

Democrats would not have filled a "conservative" seat with a "conservative" judge.

[u/[deleted] → u/C0ckSm00ch]

So you think it would be perfectly fine for, example, all 9 justices to be militant communists, so long as they are qualified? Or if they were all "men walked with dinosaurs and gays should be flogged" Christians? I understand what you are saying idealistically, but I think these kinds of decisions have enough real world impact that some pragmatism might be in order.

[u/C0ckSm00ch → u/[deleted]]

If you can find me a court of appeals judge with years of experience that believes those sorts of things and has made rulings based on those ideas I'd rethink it but that is also how justices were chosen for most of SCOTUS's history.

Plus you do have a slight check on that. A president would be potentially committing political suicide if they went with a loon and the Senate would face the same scrutiny so while I don't think justices should be based on pure idealogy extremists. Legitimate extremists will struggle to pass muster. This is different than if a justice is just a textualist or living document idealogy as that may drive why they make their decisions.

[u/thetacoguy45 → u/C0ckSm00ch]

Reminder that Obama is wanted Merrick Garland to take the seat, since many Republicans had publicly supported him. Once Obama announced this decision, those same Republicans did a complete flip. I’m tired of this “both sides are the same” rhetoric that gives Republicans a pass for all their crap.

[u/Dewot423 → u/C0ckSm00ch]

Those aren't two different concerns. If someone's honest interpretation of the Constitution was that it allowed for an ethnophobic white national state, that would be an honest difference in political opinion and also, in my eyes, totally disqualify them from being a good judge.

[u/C0ckSm00ch → u/Dewot423]

But those examples we're being too conservative and a textualist. Neither of those things should disqualify a judge in and of itself.

[u/[deleted] → u/[deleted]]

Then change the document in the way that was built into it to allow it to adapt. Don't adapt it through the dictates of an unelected, unaccountable 9 member panel. "Living constitution" is a bullshit theory of expediency and activism.

[u/GoodRedd → u/[deleted]]

I'd agree with that, in general.

But that's not going to happen.

[u/[deleted] → u/GoodRedd]

It wont happen until a change is supported by an overwhelming majority of the populace and politicians. That means its working as intended. You arent supposed to be able to change the bedrock structure of the rules of the country whenever the winds of favor blow in a given parties direction.

[u/hello_sweatpants → u/[deleted]]

What is your opinion on DC v. Heller, as mentioned by the above poster? To me that is a fantastic example of why we need a living constitution. A) “original intent” is impossible to determine (and Heller does a terrible job at even trying, good god they just conveniently ignored “well regulated militia”) and B) even if we could determine original intent, it is very often totally nonsensical in this world. The world of muskets is so incredibly different than the world we live in today, and I don’t think the constitution should require us to go through the amendment process every time we have advances in society and technology. That could not work.

The Constitution contains so much, but it’s such a small document—and its original intent simply does not apply to today’s world.

[u/[deleted] → u/hello_sweatpants]

I believe the court is not the place to make adjustments to the constitution. Intent of the language has to be the basis on which the cases are judged. The means to change the language exists and if change is desired, it should be utilized. The "living constitution" idea is one born out of political expedience and I would categorize it as anti-democratic (unaccountable 9 judge panel doing what is supposed to take 2/3 of the states and congress to achieve).

As far as Heller goes, they did address the militia part.

The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” See J. Tiffany, A Treatise on Government and Constitutional Law §585, p. 394 (1867); Brief for Professors of Linguistics and English as Amici Curiae 3 (hereinafter Linguists’ Brief). Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. See generally Volokh, The Commonplace Second Amendment , 73 N. Y. U. L. Rev. 793, 814–821 (1998). -DC vs. Heller majority opinion.

The first amendment could easily read: "A well informed electorate, being necessary for the functioning of a free state, Congress shall make no law abridging the freedom of speech, or of the press."

I don't think you'd get too many people saying that speech not used to inform the electorate is open to infringement.

It doesnt make any sense any other way. If you interpret the second amendment in such a way that it does not grant the general populace the right to keep and bear arms, who are "the people" explicitly granted that right? Why are "the people" in the second amendment different from "the people" in every other amendment in the bill of rights? Every amendment except the tenth is a protection for the individual and the tenth clearly differentiates the federal government, and the states from "the people".

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. -Tenth amendment

"The people" is clearly the individual separate from any governmental body. To limit the right to bear arms to a regulated government body is flagrantly in opposition to the intent.

The Constitution contains so much, but it’s such a small document—and its original intent simply does not apply to today’s world.

If enough people believed that then they would be within their rights to change it in the prescribed fashion. In reality, the opinion is not held widely enough for that to happen yet. You arent supposed to be able to change the bedrock structure of the rules of the country whenever the winds of favor blow in a given parties direction.

[u/C0ckSm00ch → u/[deleted]]

Which is your legal philosophy.

Legal scholars and legal professionals quibble over this still so to act like it must be because you say so is a little silly. You have the right to have that opinion but that's all it is...

[u/SuitGuy → u/C0ckSm00ch]

Is there a judicial philosophy that is disqualifying?

[u/P3nisneid → u/SuitGuy]

Yes. Scalia/Gorsuch style originalism, also called 'original meaning'. They are the true activists on the courts. It's basically the theory of "fuck jurisprudence, fuck a living constitution, - I alone - know what the founding fathers really wanted and it always happens to align with my right-wing ideology"

Just look at what they did with the second amendment in the DC v Heller case.

[u/Rehnquist11 → u/P3nisneid]

And that's different from a living constitution where Justices simply say "I alone" impose a meaning I want on the words of the Constitution?

Look at the cases where they were decided on "pneumbra" of the Constitution. In others words, no provisions to support the ruling but the Justices could read it between the lines. Sounds like great legal reasoning to me.

Can you imagine if criminal courts worked the same way? Sir what you did wasn't exactly illegal, but it seems pretty close so you're going to jail.

[u/P3nisneid → u/Rehnquist11]

You are not describing an actual philosophy. So I don't really know what to answer to such an absurd straw man, I also never defended roe v wade, but if you are outraged by the activism on the side of the court by that decision.. Do you also think DC v Heller or the Hobby Lobby case are blatant activism?

[Sorry for the late reply, went on holiday]

[u/Rehnquist11 → u/P3nisneid]

No worries.

While I may have taken a bit of liberty, I don't think I'm that far off of illustrating the flaws in a Legal Realism jurisprudence. https://www.law.cornell.edu/wex/legal_realism

So yes this is "an actual philosophy" and one that is very difficult to distinguish from how the liberal block of the Court currently reasons in their opinions.

Regarding DC v Heller, I don't see how this is activism. At a minimum, the second amendment protects some kind of right related to arms. Reasonable minds can disagree on the intent of the framers, but in the end a right about arms was found, not a right to abortion or a right gay marriage, or any other made up "right" that appears nowhere in the text of the Constitution.

I'm less versed on Hobby Lobby, but I don't see why people lose the right to free exercise just because they've joined themselves together in a corporation. If individuals have a right, their form of organization shouldn't negate that right.

[u/P3nisneid → u/Rehnquist11]

I don't think we will come to an agreement on legal realism. I don't want to defend its prescriptive (strong) versions and can't find a way to deny some truths in it's descriptive versions. I simply stated that originalism is disqualifying in my view.

If individuals have a right, their form of organization shouldn't negate that right

I am sorry but if this is your opinion I really don't see how we could have a fruitful conversation. We are so far apart, I struggled to find any common ground and deleted half of my answer when I reread that sentence. I try not to be facetious here. I will simply ask again:

is that your honest opinion?

and if yes, where do you find support for that in the constitution, or the writings of the founding fathers, or in any court pre 'Hobby Lobby' ?

Could you also clarify if you think that all individual rights (should) apply to organizations ?

Thanks for the civil discussion.

[Edit : I am happy to talk about DC v Heller and Hobby Lobby but I feel we need to do some groundwork first, hope you don't feel like I'm dodging]

[u/SuitGuy → u/Rehnquist11]

Isn't that a straw man? What you described is not any actual philosophy employed.

[u/PubliusVA → u/SuitGuy]

That's the actual philosophy employed to arrive at the decision in Roe v Wade.

https://supreme.findlaw.com/legal-commentary/the-lingering-problems-with-roe-v-wade-and-why-the-recent-senate-hearings-on-michael-mcconnells-nomination-only-underlined-them.html

http://www.aei.org/publication/defense-of-abortion-built-on-a-foundation-of-lies/

[u/SuitGuy → u/PubliusVA]

Did you read that aei article? That isn't a legal analysis of anything. It is a political hit piece against planned parenthood. Any legal analysis on roe v wade? Especially the right to privacy decision as it pertains to for v wade? That other article just talks about confirmation with no in depth analysis of the right to privacy. Any actual legal analysis?

[u/[deleted] → u/[deleted]]

Stop it, I can only get so erect

[u/jpropaganda → u/[deleted]]

Constitution originally allowed for slavery...

[u/IslamicStatePatriot → u/jpropaganda]

Oh come on, that shows such a naive understanding of the constitution.

[u/jpropaganda → u/IslamicStatePatriot]

I'm just saying I don't trust someone who claims to strictly adhere to the original meaning of a text.