There Are 4 Issues That the Supreme Court Can Blow Wide Open After Kennedy Leaves


Supreme Court Justice Anthony Kennedy shocked the political world and sent Democrats into an anguished tailspin when it was announced Wednesday that he would be retiring after serving 30 years on the bench of the highest court in the land.

Kennedy, a generally conservative Republican who’d been nominated to the court by former President Ronald Reagan, had nevertheless become known as a swing-vote due to his tendency to side with the liberal justices on certain social issues, such as abortion and LGBT rights.

“It’s the most consequential change to the Supreme Court’s membership in many decades,” Dan Epps, an associate professor of law at Washington University School of Law who once clerked for Kennedy, told the Washington Examiner. “Now, he was a conservative Republican for sure, but there were a bunch of issues where he wasn’t rock solid.”

Though it is unclear at this point who exactly President Donald Trump will nominate to replace Kennedy, he has stated the nominee will come from the list of jurists he already compiled and Senate Majority Leader Mitch McConnell made clear that nominee would receive confirmation hearings and a vote prior to the midterm elections, much to the dismay of obstructionist Democrats who understand the balance of the court is about to shift to the right.

Oddly enough, the addition of a new conservative-leaning justice will likely compel the more moderate Chief Justice John Roberts — appointed by former President George W. Bush — to perform double duty as both the chief justice and the new middle-ground swing vote role.

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Once Kennedy’s uncertain swing vote has been replaced by a more consistent conservative with an originalist and textualist view toward the Constitution and laws, there are a number of significant issues held dear by Democrats that could come before the new mostly-conservative majority court for major hearings.

Perhaps the biggest of those issues is that of abortion, and Democrats wasted no time in weeping and gnashing their teeth at the prospect of the impending demise of the 1973 Roe v. Wade decision that legalized the procedural murder of unborn babies across the entire U.S. — a decision Kennedy had reaffirmed in 1992 with a ruling in favor of Planned Parenthood, though one he had limited with a 2007 ruling that upheld a ban on partial-birth abortions.

Kennedy’s replacement will undoubtedly hold a pro-life viewpoint, and while that is no guarantee of how they’ll vote given the particulars of the case they’ll see, odds are favorable that they’ll vote in favor of life and against state-sanctioned murder.

Another major issue likely to come before the court in the near future is that of LGBT rights, particularly as those rights conflict with the religious liberty rights of those who oppose the LGBT lifestyle on moral grounds.

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Kennedy was heralded by the left when he stood with the liberal justices in 2015 and helped usher in gay marriage, though he had also sided with conservatives with regard to religious liberty on the occasions those two issues were conflicted.

Though it is unlikely that the 2015 gay marriage ruling will be overturned in the near future, if ever, there will undoubtedly be more cases pitting LGBT rights against religious liberty rights, and a more reliably conservative jurist will most likely rule more favorably for the latter.

Still another issue where Kennedy’s more conservative replacement could make a difference is on the issue of affirmative action, or the use of race as a determining factor in educational admissions or employment decisions.

Conservatives are generally opposed to affirmative action as they believe, much like Dr. Martin Luther King, Jr. did, that people should be judged solely on the content of the character and not the color of their skin, a viewpoint obviously at odds with that of identity politics leftists.

Finally, we have the issue of the “deep state” bureaucracy, also known as the “administrative state,” the collection of un-elected executive branch employees who run the government and have generally been granted deference by the court in their interpretations of ambiguously written laws by what is known as the “Chevron doctrine.”

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Kennedy was once a proponent of the Chevron doctrine but had recently called it into question along with other conservative justices. It is highly likely that his replacement will be skeptical of granting wide deference to administrative state bureaucrats and instead seek to limit the reaching tentacles of the power-hungry leviathan that is the deep state.

The fight to get Kennedy’s eventual replacement confirmed will be dirty and perhaps even prolonged, but it ultimately will happen, and will shift the balance of the court to the right and toward conservative principles for many decades to come, which will undoubtedly have an impact on a number of hot issues facing our country.

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Ben Marquis is a writer who identifies as a constitutional conservative/libertarian. He has written about current events and politics for The Western Journal since 2014. His focus is on protecting the First and Second Amendments.
Ben Marquis has written on current events and politics for The Western Journal since 2014. He reads voraciously and writes about the news of the day from a conservative-libertarian perspective. He is an advocate for a more constitutional government and a staunch defender of the Second Amendment, which protects the rest of our natural rights. He lives in Little Rock, Arkansas, with the love of his life as well as four dogs and four cats.
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