It’s not just abortion: 5 issues likely to be affected by Kennedy’s exit

S E E D E D   C O N T E N T

When it comes to issues like abortion and affirmative action, it has seemed for years that Justice Anthony Kennedy was holding back the tide. Now, his retirement may unleash a crashing wave.

The departure of the relatively moderate Kennedy from an ideologically polarized court has the potential to upend legal precedent on a slew of hot-button issues, but the most significant impact is likely on abortion rights, where Kennedy stood squarely with the court’s liberals to defend   Roe v. Wade , the 1973 ruling that upheld a woman’s right to choose.

If the court picks up a new vote hostile to abortion rights, Roe probably won’t be overturned right away, but the court could be given an opportunity to consider a reversal within years. Kennedy’s exit also seems certain to accelerate the erosion of access to abortion by blessing a series of state laws limiting when and where women can terminate a pregnancy.

Major changes could also be coming in other areas where Kennedy, an appointee of President Ronald Reagan, has been counted as a crucial vote on the court, including affirmative action, gay rights, voting rights and the application of the death penalty to minors and the intellectually disabled.

On some issues, like affirmative action, the court’s rulings from prior decades already seemed to be on life support and may now be all but dead if President Donald Trump succeeds in adding another hard-core conservative to the court. But inertia and the court’s aversion to rapid reversals of its precedents could save some 5-4 rulings in which Kennedy carried the day, like the landmark 2015 decision legalizing same-sex marriage.

Here’s a look at the legal hot spots in the wake of Kennedy’s retirement, as well as some areas where the status quo may survive:

1. Abortion

Kennedy’s retirement has put the future of abortion rights in the United States on the line.

During his campaign, Trump promised to appoint “pro-life” judges to the Supreme Court — a pivotal pledge that won him the backing of anti-abortion voters. Now, he’ll have the opportunity to replace Kennedy with a nominee who could reverse or dramatically alter the landmark ruling.

Kennedy’s replacement would probably serve as the deciding vote on an abortion decision, with the other eight justices evenly divided today. The court could determine not only when during a pregnancy abortion is legal but also what kind of prohibitions the states can place on the procedure.

With Trump’s campaign pledge in mind, anti-abortion groups have been eagerly anticipating a new Supreme Court nominee.

“I’ve very confident it will be someone who is a strict constitutionalist,” said Marjorie Dannenfelser, president of the Susan B. Anthony List, an anti-abortion group. “That means someone who recognizes the life in the law, so I think that’s very likely either with this judge or the next, we’ll see the erosion and final overturn of   Roe v. Wade .”

Rep. Steve King (R-Iowa) encouraged his state this year to pass a ban on abortion as soon as a heartbeat is detected — a bill that is flatly unconstitutional under current law — with hopes that it would be challenged in court and potentially serve as the vehicle to undo Roe. The court challenge is pending.

“I wrote the heartbeat bill to go before the court after the next appointment at the Supreme Court,” King told POLITICO earlier this year in describing his still-unpassed federal version of the bill.

The court could get an opportunity to address abortion rather quickly. In addition to the lawsuit against the Iowa bill, suits are pending over a state prohibition at 15 weeks of pregnancy as well as state regulations of abortion providers. In recent years, the Supreme Court has turned down opportunities to revisit Roe by declining cases that challenged states’ laws to make abortion illegal after 20 weeks of pregnancy.

Kennedy’s legacy is closely tied to abortion rights. In 1992, he famously switched his vote in support of upholding the 1973 Roe decision in   Planned Parenthood v. Casey , the first major opportunity the Supreme Court had to undo the landmark decision. Since then he has ruled in support of abortion rights, including a 2016 decision to strike a series of Texas anti-abortion laws. But in 2007, he was with the majority in a ruling to uphold the ban on so-called partial-birth abortions.

If the court were to strike down the Roe decision, states would most likely be able to determine whether and in what situations abortion is legal. A patchwork would likely form, with conservative states implementing bans or severe prohibitions on the procedure.

Eight states — three of them led by Republican governors — already have laws on the books that preserve a woman’s ability to get an abortion in the event that Roe is overturned, according to the Guttmacher Institute, a nonprofit organization that supports abortion rights. They are California, Connecticut, Delaware, Hawaii, Maine, Maryland, Nevada and Washington State.

Louisiana, Mississippi, North Dakota and South Dakota already have laws that automatically ban abortion if the federal law is struck down. Eight also have statutes that express their intent to restrict abortions to the maximum extent by the Supreme Court, though some of the states overlap — Arkansas, Illinois, Kansas, Kentucky, Louisiana, Missouri, North Dakota and Ohio. Two more states, West Virginia and Alabama, have 2018 ballot measures to say there is no right to an abortion in the states’ constitutions.

2. Affirmative action

Kennedy was seen as the sole voice among the court’s current Republican appointees who was open to race-based affirmative-action plans for public colleges and universities. However, he did not seem enthusiastic about the practice, and rarely seemed to find an instance in which he thought the programs were tailored enough to pass constitutional muster.

But in a surprise decision in 2016, Kennedy wrote a 4-3 majority opinion upholding the University of Texas’ program aimed at achieving diversity in its undergraduate student body. Still, the slender majority on a court operating shorthanded after the death of Justice Antonin Scalia and the recusal of Justice Elena Kagan, demonstrated that affirmative action was hanging by a thread that Kennedy appeared to be holding.

If Trump’s selection is in line with conservative legal thinking on the issue, he or she seems virtually certain to sound the death knell for use of race and ethnicity in public-sector admissions. But even bigger fights are brewing.

Anti-affirmative-action activists are pursuing a lawsuit against Harvard, arguing that the elite school discriminates against Asian-Americans in order to meet certain goals for the racial makeup of its student body. If that case gets before a Supreme Court where Kennedy is swapped for a conservative successor, affirmative action could be dead not only at public schools but also at private ones whose practices have largely escaped legal scrutiny until now.

3. Voting rights and partisan gerrymandering

Kennedy has been far from a dependable vote for civil rights groups challenging voter identification laws or voting districts alleged to discriminate against minorities. In 2008, he voted to uphold an Indiana voter ID law. And as recently as Monday, Kennedy joined with the court’s conservatives to uphold virtually all of a Texas redistricting plan that a lower court had blocked as discriminatory toward African-Americans and Latinos.

However, Kennedy had also served as the leading hope for proponents of a new wave of voting-rights litigation: suits claiming that partisan lawmakers are violating the Constitution and the Voting Rights Act by using sophisticated computer programs to draw contorted districts that virtually guarantee which party will hold the seat.

Kennedy was seen as a potential fifth vote in favor of such challenges because back in 2004, in turning down a challenge to a congressional redistricting plan in Pennsylvania alleged to favor Republicans, he said he might sustain such a suit “if some limited and precise rationale were found to correct an established violation of the Constitution.”

The quest to find a partisan gerrymandering suit that Kennedy might bless proved unsuccessful, however. Last week, the Supreme Court punted on cases from Wisconsin and Maryland that could have been vehicles to set a standard for how skewed is too skewed. One case was tossed out on technical grounds, and the other was sent back to a lower court.

A North Carolina partisan gerrymandering case that the justices were mulling whether to add to their docket, but that was sent back down earlier this week, could return next term. But with most of the court’s conservative justices and much of the country’s conservative legal establishment hostile to the idea of judicial intervention in such cases, the drive to set a standard for unconstitutional partisan gerrymandering may have met its end.

4. Gay rights

Kennedy has been the Supreme Court’s unrivaled champion of gay rights, rallying behind the cause even before it achieved widespread support in American society. Again and again, as the justices turned to the issue in recent decades, the Reagan appointee emerged as the court’s leader.

In 1996, Kennedy wrote a 6-3 decision striking down a Colorado constitutional amendment that barred civil rights protections for gays and lesbians. In 2003, he penned another landmark 6-3 ruling voiding state sodomy laws.

The margin narrowed for Kennedy’s two other gay rights decisions, but they did even more to bring LGBT Americans toward legal and social acceptance. In 2013, he led a 5-4 ruling overturning a key portion of the Defense of Marriage Act. The result was to give same-sex married couples full recognition under federal law. Two years later, Kennedy wrote the Supreme Court’s groundbreaking decision upholding a right to same-sex marriage in every state.

Kennedy’s decision to leave the court left many gay rights leaders reeling, as they tried to parse his decision to retire after joining a string of conservative rulings, including one upholding Trump’s controversial travel ban policy.

“We are shocked and saddened that a justice who was once the defender of dignity for LGBT people and our families on the court would chose this moment to hang up his robe and give the Trump administration the opportunity to further derail anti-discrimination laws and undermine the rule of law,” said Rachel Tiven of Lambda Legal, an LGBT advocacy group.

Gay rights activists also said they were disappointed that Kennedy wrote an opinion earlier this month that punted on many of the issues presented by a religious Colorado baker’s refusal to prepare a cake for a same-sex wedding. Kennedy’s opinion said state officials unfairly targeted the baker over his religious views, but the ruling left open the question of when states can enforce anti-discrimination laws against business owners claiming a moral or religious objection to same-sex marriage.

While Chief Justice John Roberts seems likely to join with the court’s liberals in holding the line against reversals of any of Kennedy’s landmark gay rights decisions, the issue of religious and free-speech objections to anti-discrimination laws is certain to return to the court. Any Trump nominee seems likely to side with those seeking the right to opt out of such laws, making the rights of LGBT people more vulnerable in a post-Kennedy court.

5. Death penalty

Kennedy had shown no outward signs that he was prepared to declare the death penalty unconstitutional. Indeed, he often voted to turn down last-minute stays, allowing executions to go forward.

However, Kennedy sometimes appeared to be the only Republican appointee on the court who believed that the Constitution imposed important limits on the imposition of the ultimate punishment.

In 2005, Kennedy led a five-justice majority putting the death penalty off limits for crimes committed by people younger than 18. In 2008, he authored a 5-4 ruling barring the use of the death penalty in cases of child rape. (Then-candidate Barack Obama staked out a position to Kennedy’s right, saying that capital punishment should be available in such instances.) And in 2014, Kennedy wrote a 5-4 decision holding unconstitutional a numerical IQ cutoff to render a defendant eligible for the death penalty.

“If you were a death row prisoner with a case in front of the United States Supreme Court, you couldn’t win without Justice Kennedy’s vote. … So, there will be a practical effect,” said Robert Dunham of the Death Penalty Information Center, an anti-capital-punishment group.

Dunham said he was hopeful that moves away from the death penalty at the state level would continue, but Kennedy’s departure means help on that front from the Supreme Court is likely to grow more rare.

“In a very real sense, the evolving standards of decency under the Eighth Amendment reflect Justice Kennedy’s evolving understanding of the death penalty and his evolving understanding of American morality,” Dunham said. “That will necessarily change with the appointment of a new justice.”

By   JOSH GERSTEIN   and   JENNIFER HABERKORN

  06/27/2018 10:59 PM EDT

Rachana Pradhan contributed to this report.