Justice Kennedy’s Inevitable Retirement And The Future Of The High Court [Opinion]

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Several weeks ago, and while drowned out by a volatile news cycle, the American legal and political world was shaken to its very core with the rekindling of retirement rumors pertaining to the estimable members of the United States Supreme Court. To be sure, with three sitting justices either already octogenarians, or on the cusp of joining such a distinguished club, we’ve long been exposed to the never-ending torrent of unspecific retirement speculation which surrounds the High Court’s justices.

As the recent Supreme Court term drew to a close, Business Insider reported that Associate Justice Anthony Kennedy was considering doffing his judicial robe for the last time. Nominated and confirmed in 1988 under President Reagan, Kennedy is the longest-serving member of the current Court, very nearly rounding out his third full decade on the nation’s highest bench.

After such a long and distinguished tenure, not a single soul can argue that the 81-year-old jurist hasn’t earned his retirement. However, the rumblings of Justice Kennedy’s possible retirement has left many observers, myself included, worrying about what his future absence would mean not only for the High Court, but for the nation itself.

Adhering to a school of constitutional interpretation that closely resembles that of a libertarian—robust in the defense of individual liberty, while suspicious of governmental overreach—his presence on the Supreme Court is invaluable, particularly today. Not merely because he holds the overly-simplistic, but commonly attributed, mantle of “swing vote,” but because his rare brand of finely-aged conservatism has transformed him into the Court’s only ideological moderate.

'Authority of Law' statue outside the Supreme Court.
The 'Authority of Law' statue sitting outside the United States Supreme Court. [Image by Drew Angerer/Getty Images]Featured image credit: Drew AngererGetty Images

By modern standards, he’s an unconventional jurist who staunchly supports civil liberties, while prizing the principles of limited government. Kennedy is a jurist who has cast the deciding vote, even writing the majority opinion, in a number of landmark decisions central to the tenets of a free society. He immortalized the rights of America’s LGBT community by penning the decision in Obergefell v. Hodges (2015), which legalized same-sex marriage. He preserved women’s reproductive rights in Planned Parenthood v. Casey (1992), enshrined the protections afforded by free speech in Texas v. Johnson (1989), and solidified firearm ownership rights in District of Columbia v. Heller (2008). He’s a unique individual who has been able to routinely cross the invisible, but palpable, cavern of political ideology that detrimentally permeates Constitution and Pennsylvania avenues.

Celebration outside the Supreme Court after same-sex marriage was legalized.
Supporters celebrate after the Supreme Court legalizes same-sex marriage. [Image by Alex Wong/Getty Images]Featured image credit: Alex WongGetty Images

During an era in which a devastating—if not crippling—fog of uncompromising polarization has enveloped the whole of our legislative and executive branches, the judiciary cannot follow suit and descend into the abyss of complete unresponsiveness. The body charged with the noble task of safeguarding the nation’s conscience, its very soul, cannot fall prey to the inescapable clutches of division.

When contemplating the retirement of Justice Kennedy and its implications for the American way of life, even if merely in the near term, it’s worth recalling the words of former Chief Justice Charles Evans Hughes, who stated, “When we lose the right to be different, we lose the privilege to be free.”

[Featured Image by Eric Thayer/Getty Images]