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Session Summary: The Kennedy Retirement

Session Summary: The Kennedy Retirement: A Retrospective and Gaze at the Future

Submitted by Barry P. McDonald

Moderator Professor Zach Price set the stage by discussing how Justice Kennedy, nominated by President Reagan after the failed nominations of Judges Bork and Ginsburg, turned out to be more moderate than many had expected. He then discussed concerns about changes in our fundamental law that are driven by changes in the Supreme Court’s membership. Professor Michael Dimino next contended that Justice Kennedy’s legacy would be mixed. On the one hand, he would be remembered for his libertarian boldness in areas such as free speech and gay marriage. In other major decisions, however, such as those involving partisan gerrymandering and affirmative action, he exhibited caution and hand wringing that produced unintelligible principles.

Professor Barry McDonald next discussed the areas of constitutional law most likely to change assuming the Court becomes staffed with five solid conservative justices. In areas of constitutional structure, he focused on justiciability requirements being potentially tightened (e.g., standing and political question standards), and congressional and executive power to fight the “war on terror” being expanded. As to constitutional rights, among other things, he discussed how substantive due process standards would likely revert to the more restrictive history and traditions approach, abortion rights will likely be curtailed (and Roe potentially overruled), and affirmative action programs will likely face extreme skepticism. Professor Wendy Greene then argued that the fundamental right recognized by Kennedy in Obergefell was grounded in the notion that every person enjoys equal dignity and liberty rights. Moreover, this was a natural extension of Kennedy’s view that racial classifications can be stigmatizing and that people have a liberty interest in being free from them. Such reasoning might be used by the Court to justify a more color-blind Constitution.

Professor Vivian Hamilton next argued that Kennedy’s decisions can be considered as being more principled than he is generally given credit for. For instance, his decisions in Romer and Lawrence can be viewed as attempts to move the Court from a focus on privacy rights to liberty interests. She also argued that abortion rights will be in jeopardy should Judge Kavanaugh be confirmed to the Court. Finally, Professor Justin Walker argued that while some of Kennedy’s decisions were characterized by caution and lack of clarity, in many other decisions such as Citizens United and Gonzalez he acted as a strong leader of the Court’s conservative wing. He also contended that Judge Kavanaugh’s judicial record indicates that there may be some surprises in store for those who argue he will be a consistently solid conservative.

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