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WITH JUSTICE KENNEDY’S
RETIREMENT ENTER A NEW
ERA OF JURISPRUDENCE
BY BRENDAN BEERY
Anthony M. Kennedy has announced that he will retire from the Supreme Court, and Democrats are powerless to stop
President Donald Trump from replac- ing him now that Republicans killed the  libuster in the Senate (during the  ght over Neil Gorsuch, Trump’s  rst Supreme Court pick). Justice Kennedy has been the swing vote on the Court, especially as to hot-button social issues, and his departure will mean tectonic shi s in our nation’s jurisprudence. President Trump will likely appoint a young, well-vetted so- cial conservative.
With the new justice, we may see states tackling morals issues anew – not just as to LGBTQ issues and reproductive choice, but also a wide range of sexual, marital, and family matters that were off-limits”
SOCIAL ISSUES
 ree issues will be front and cen- ter – reproductive rights, including a woman’s right to terminate a pregnan- cy under Roe v. Wade; a rmative- action programs at public universities and in public employment; and equal- ity for LGBTQ Americans, including rights associated with same-sex mar- riage or family arrangements.
On each of those issues, the Court sat on a razor’s edge, with Kennedy standing between the Court’s four liberal justices and the Court’s four socially conservative justices. Roe v. Wade may be overturned or curtailed. Public a rmative-action programs designed to boost minority represen- tation may be struck down. And LG- BTQ Americans who wish to marry or adopt children should do so soon, given that Obergefell v. Hodges, the same-sex marriage case authored by Kennedy himself, was a 5-4 decision.
CONSTITUTIONAL INTERPRETATION
More broadly, Justice Kennedy tended to see the Constitution as a living and evolving document whose language should be interpreted in light of our contemporary culture and norms. Given our political cli- mate, Kennedy may be replaced by an originalist (at least on social issues). Cruel and unusual punishment, for example, will mean punishment that was unusual in 1791, when the Eighth Amendment took e ect. Liberty will encompass that which it encompassed in 1868, when the 14th Amendment took e ect.
And Kennedy was the justice who insisted, in cases like Lawrence v Tex- as, that states not regulate individual moral decisions. With the new justice, we may see states tackling morals is- sues anew – not just as to LGBTQ is- sues and reproductive choice, but also
a wide range of sexual, marital, and family matters that were o -limits as long as Kennedy was the person mak- ing the rules.
CAMPAIGN FINANCE & BUSINESS INTERESTS
Kennedy was reliably with the Court’s other four conservatives (Chief Justice Roberts and Justices  omas, Alito, and Gorsuch) on issues around voting, campaign  nance, and labor and business interests, so expect little change there. In those areas, the Court has largely already made its mark – declaring money directed at advocacy to be speech, corporations to be persons for speech purposes, public-union dues to be unacceptable as compelled speech, and partisan gerrymandering to be outside the ju- risdiction of courts.
On such matters as these, the Court’s trajectory will be steady. As to issues of privacy and morals-based decision making, jurisdiction over those matters will dri  from the indi- vidual to the state.
President Trump ran on a promise to seat pro-life conservatives on the Supreme Court. Voters endorsed the coming rightward turn on the Su- preme Court with their votes, and saw  t also to a rm Republican majori- ties in Congress. It is not, as so many seem to suggest, that President Trump is changing the face of the judiciary.  e American people did that. We are now entering a new era that will last a
generation or more.
BRENDAN BEERY IS A TENURED PROFESSOR AT WEST- ERN MICHIGAN UNIVERSITY COOLEY LAW SCHOOL, WHERE HE HAS TAUGHT FOR 16 YEARS. HE TEACHES CONSTITUTIONAL LAW AND RUNS SEMINARS ON LEGAL REASONING. HE IS A THREE-TIME WINNER OF THE STAN- LEY E. BEATTIE TEACHING AWARD AND A FREQUENT COMMENTATOR IN THE MEDIA ON MATTERS INVOLVING LAW AND POLITICS.
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