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What made Justice Anthony Kennedy an influential voice

Writing that it had been "the greatest honor and privilege" to serve, Supreme Court Justice Anthony Kennedy announced his retirement hours after the court wrapped up its latest term. Kennedy's decision gives President Trump a chance to nominate another conservative, setting the stage for a Senate battle royale. Marcia Coyle of The National Law Journal joins Amna Nawaz.

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  • Amna Nawaz:

    Shakeup at the U.S. Supreme Court.

    Justice Anthony Kennedy announced today that he’s calling it a career. He’s spent 30 years on the court, and has long been a swing vote that decided key cases. Now his retirement could trigger an all-out election-year war over a successor.

    The news came hours after the court wrapped up its latest term. Justice Kennedy wrote to President Trump that it had been — quote — “the highest of honors to serve.” The president reacted almost immediately during a meeting with the president of Portugal.

  • President Donald Trump:

    He will be retiring, and we will begin our search for a new justice of the United States Supreme Court. That will begin immediately.

  • Amna Nawaz:

    Anthony Kennedy was a federal appeals judge when President Reagan nominated him to the Supreme Court in 1987. The Senate had rejected the president’s first pick, Robert Bork, in a famously bruising confirmation fight.

    The second choice, Douglas Ginsburg, withdrew after admitting to using marijuana as a younger man. Kennedy had a relatively easy confirmation process.

  • Anthony Kennedy:

    The whole lesson of our constitutional experience has been that a people can rise above its own injustice, that a people can rise about the inequities that prevailed at particular time.

  • Amna Nawaz:

    In the end, he sailed through the Senate by a vote of 97-0, and was sworn in on February 18, 1988.

    Conservatives often counted on his vote. He was in the 5-4 majority that gave the 2000 presidential election to George W. Bush. In Citizens United in 2010, he supported loosening campaign spending restrictions on corporations. Later, he voted to strike down key provisions of the Voting Rights Act.

    And just yesterday, he sided with the majority, upholding President Trump’s travel ban.

    But Kennedy also shifted sides at times. In 1992, he voted to uphold the right to abortion. He backed affirmative action in a case from Texas in 2016. And in the landmark 2015 case Obergefell vs. Hodges, Kennedy authored a sweeping majority opinion in favor of same-sex couples’ right to marry.

    “They ask for equal dignity in the eyes of the law,” he wrote. “The Constitution grants them that right.”

    Off the bench, Kennedy’s passion for the law was evident. In 2007, he staged a trial for Shakespeare’s “Hamlet” at the Kennedy Center.

  • Anthony Kennedy:

    We, the members of the jury, are not unanimous.

  • Amna Nawaz:

    He spoke to “NewsHour”‘s Jeffrey Brown, and shed some light on his own decision-making.

  • Anthony Kennedy:

    Humans are fallible. We tend to err. But law and literature both show us ways in which we can progress and mend our ways.

  • Amna Nawaz:

    Now Justice Kennedy’s retirement gives the president a chance to nominate another conservative, having already placed Neil Gorsuch on the bench.

    And that sets the state for a Senate battle royal.

    Majority leader Mitch McConnell today promised speedy action.

  • Sen. Mitch McConnell, R-Ky.:

     The Senate stands ready to fulfill constitutional role by offering advice and consent on President Trump’s nominee to fill this vacancy. We will vote to confirm Justice Kennedy’s successor this fall.

  • Amna Nawaz:

    Minority Leader Chuck Schumer demanded that any nomination wait until after the midterm elections in November.

  • Sen. Chuck Schumer, D-N.Y.:

     Our Republican colleagues should follow the rule they set in 2016 not to consider a Supreme Court justice during election year. Anything but that would be the absolute height of hypocrisy.

  • Amna Nawaz:

    The president says he will pick a nominee from a list of 25 conservative judges.

    Marcia Coyle of “The National Law Journal” has covered the high court ever since Justice Kennedy joined the bench, and joins me now. Thanks for being here, Marcia.

  • Marcia Coyle:

    Happy to be here.

  • Amna Nawaz:

    So, just off the bat, let me ask you your reaction to today’s news.

  • Marcia Coyle:

    Well, the retirement of Justice Kennedy has been rumored since a year ago, and I think there was a sense that, if he was going to do it, it would be this year.

    He gave, as a reason, he wants more time with his family. He is a Republican appointee, and perhaps he wanted it to be under a Republican president. So I think many of us, but not me — many of us relaxed after the chief justice gaveled in the morning session, and there were no announcements from the bench of a justice retiring.

    But I did remember that Thurgood Marshall retired from the court about mid-afternoon on the last day of the term, so I wasn’t relaxing yet.

  • Amna Nawaz:

    And not very surprised, it sounds like.

  • Marcia Coyle:

    Right.

  • Amna Nawaz:

    You knew it might come.

    He was known really, had a reputation for being a centrist conservative. Right? Is that a fair assessment? And what does that mean?

  • Marcia Coyle:

    I think so, especially on a court that had conservatives that were very staunch conservatives. He hated being called the swing justice. He often said, I just end up where I end up.

    He was a conservative, a solid conservative, but he has a libertarian streak. And if you look at his decisions over the years, especially in the most controversial ones that he moved left in terms of a victory there, his jurisprudence is really animated by two things, his strong belief in the dignity of the individual, as well as in the concept of liberty that the 14th Amendment’s due process clause guarantees.

    And you see that, I think, most dramatically in the decision he wrote allowing or upholding the right of same-sex couples to marry.

  • Amna Nawaz:

    You mentioned the same-sex marriage decision there. He has weighed in and made a difference really on some of the most heated cases and issues of our time.

  • Marcia Coyle:

    That’s right.

    We can go right down the list on — you have abortion, affirmative action, voting rights, gay and lesbian equality, the death penalty. He wrote decisions that ended the death penalty for minors under the age of 18.

    And when there is the intersection of government and religion, he also was key. And many of those votes, when the victory went to the left side of the bench, they were 5-4 decisions.

  • Amna Nawaz:

    With his departure, now, is there someone else you see on the bench who might become that next sort of influential swing vote?

  • Marcia Coyle:

    Well, I don’t think there is a swing vote.

    I think, in terms of perhaps a median justice, someone in the center, the most likely possibility would be the chief justice. He is probably a stronger conservative than Justice Kennedy, but there are certain areas that he feels very strongly about, the structure of the Constitution in terms of who has the power to do what.

    And there you can see him perhaps moving a little to the left. I also look at the court right now and have seen sort of a core number, four justices who try harder, I think, than the other justices in order to find common ground and avoid the 5-4 decisions that show the court ideologically divided, but, in the minds of citizens, a partisan court.

    And those four justices are Kennedy, Roberts, Kagan, and Breyer. And so I think, now, with Justice Kennedy leaving, that search for common ground may be a lot harder.

  • Amna Nawaz:

    Very quickly, Marcia, you have spent hours in that courtroom watching the justices work.

    What stands out to you about the way that Justice Kennedy did his job?

  • Marcia Coyle:

    Well, he’s not as active a questioner as the more recent justices, but I will tell you, when he asks a question, everybody leans forward to listen, because he is so often the key to how some of these more difficult cases are decided.

    He has a professorial air about him. He’s been teaching for years as an adjunct professor in California and at a university in Salzburg, Austria. He goes there every summer. So, he’s not sort of a warm and cozy guy or very effusive, but he has a very professional demeanor on the bench.

  • Amna Nawaz:

    Marcia Coyle of “The National Law Journal,” good to have you here today.

    (CROSSTALK)

  • Marcia Coyle:

    Thank you.

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