Justice Anthony M. Kennedy has announced his retirement from the Supreme Court after 30 years, giving President Trump the chance to appoint a successor who could secure a conservative bulwark on the high court for a generation. Over the past decade, the Reagan-appointed justice became the court’s leading champion of gay rights, and he was the critical swing vote who sided with liberal justices on abortion, the death penalty and affirmative action. That had not been the case this term, however.

[Justice Kennedy, the pivotal swing vote on the Supreme Court, announces retirement]

Kennedy sided with conservatives in close votes this term

Justice Anthony Kennedy reversed a recent trend this term, voting for conservative opinions in most 5-to-4 or 6-to-3 decisions in which he was in the majority. In fact, he agreed with Trump appointee Neil M. Gorsuch more than any other justice.

Voted with conservative majority in 15 of 20 cases this term

2017-18

2015-16

Wrote the majority opinion in Obergefell v. Hodges, which guaranteed the right to same-sex marriage

Kennedy voted with liberal majority

Kennedy voted with conservative majority

2010-11

Overturned D.C.’s gun ban in D.C. v. Heller

2005-06

2000-01

1995-96

1990-91

1987-88

Appointed by Ronald Reagan in 1988

Voted with conservative majority in 15 of 20 cases

2017-18

2015-16

Kennedy voted with liberal majority

Wrote the majority opinion in Obergefell v. Hodges, which guaranteed the right to same-sex marriage

2010-11

Overturned D.C.’s gun ban in D.C. v. Heller

2005-06

Kennedy voted with conservative majority

2000-01

1995-96

1990-91

1987-88

Appointed by Ronald Reagan in 1988

50% of close decisions

Voted with conservative majority in 15 of 20 cases

2017-18

2015-16

Kennedy voted with liberal majority

Wrote the majority opinion in Obergefell v. Hodges, which guaranteed the right to same-sex marriage

2010-11

2005-06

Kennedy voted with conservative majority

Overturned D.C.’s gun ban in D.C. v. Heller

2000-01

1995-96

1990-91

1987-88

Appointed by Ronald Reagan in 1988

50% of close decisions

Voted with conservative majority in 15 of 20 cases

2017-18

2015-16

Wrote the majority opinion in Obergefell v. Hodges, which guaranteed the right to same-sex marriage

Kennedy voted with liberal majority

2010-11

Overturned D.C.’s gun ban in D.C. v. Heller

2005-06

Kennedy voted with conservative majority

2000-01

1995-96

1990-91

1987-88

Appointed by Ronald Reagan in 1988

50% of close decisions

Kennedy sided with the conservative majority in a number of important cases, including upholding President Trump’s restrictions on travel from largely Muslim countries and striking down a California law that required pregnancy centers to tell women about abortion availability.

Most major cases this term went the Trump administration’s way

Kennedy voted for the Trump administration’s position in almost all of this term’s big cases.

Trump’s travel ban

Trump v. Hawaii »

Trump has the authority to ban travelers from certain majority-Muslim countries to protect the United States.

5-to-4 vote Win for Trump admin.

Sotomayor

Ginsburg

Kagan

Breyer

Kennedy

Roberts

Gorsuch

Alito

Thomas

Justices ordered from ← liberal to conservative →

Online sales tax

South Dakota v. Wayfair »

States may compel out-of-state retailers to collect sales taxes.

5-to-4 vote Win for Trump admin.

 

 

 

 

Kennedy

 

 

 

 

Digital privacy

Carpenter v. United States »

Police must generally obtain a warrant to access location data captured by cellphone towers.

5-to-4 vote Loss for Trump admin.

 

 

 

 

Kennedy

 

 

 

 

Abortion

National Institute of Family
and Life Advocates v. Becerra »

Pregnancy centers cannot be required to tell their patients about the availability of state-offered services, including abortion.

5-to-4 vote Win for Trump admin.

 

 

 

 

Kennedy

 

 

 

 

Unions

Janus v. AFSCME »

It is unconstitutional to allow public employee unions to require collective bargaining fees from workers who choose not to join the union.

5-to-4 vote Win for Trump admin.

 

 

 

 

Kennedy

 

 

 

 

Voter registration removals

Husted v. A. Philip Randolph Institute »

Ohio’s strict method of removing infrequent voters from the rolls does not violate federal law.

5-to-4 vote Win for Trump admin.

 

 

 

 

Kennedy

 

 

 

 

Sports betting

Murphy v. NCAA »

The federal law that forbade states from authorizing betting on college and professional sports violated states’ rights.

6-to-3 vote Loss for Trump admin.

 

 

 

 

Kennedy

 

 

 

 

Labor arbitration

EPIC Systems Corp. v. Lewis »

Companies may require workers to settle employment disputes through individual arbitration rather than joining to press their complaints.

5-to-4 vote Win for Trump admin.

 

 

 

 

Kennedy

 

 

 

 

Religion and gay rights

Masterpiece Cakeshop v. Colorado Civil Rights Commission »

The court ruled for a Colorado baker who refused to create a wedding cake for a same-sex couple.

7-to-2 vote Win for Trump admin.

 

 

 

 

Kennedy

 

 

 

 

Immigrant detention

Jennings v. Rodriguez »

Those held by the government and facing deportation are not entitled to a bond hearing even after months or years of detention.

5-to-3 vote Win for Trump admin.

 

 

Recused

 

Kennedy

 

 

 

 

There were 19 5-to-4 decisions this session — but none in which Kennedy joined the four liberal judges, Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, to form a majority, as he did two years ago in striking down Texas abortion restrictions and upholding affirmative action at the University of Texas. He sided with conservatives in cases that keep workers from banding together in group arbitrations, allow the purging of occasional voters from the rolls and overturn a 40-year precedent that allows public sector unions to collect mandatory dues. And he was in the majority in fewer cases than Chief Justice John G. Roberts Jr.

Kennedy and Roberts have often been deciding vote

For years, Kennedy was the justice most often in the majority. In his final year, Roberts overtook him as the court’s most influential member.

100%

88%

Kennedy

85%

80

Roberts

60

40

Thomas

20

0

’10-11

’11-12

’12-13

’13-14

’14-15

’15-16

’16-17

’17-18

100%

88%

Kennedy

80

85%

Roberts

60

40

Thomas

20

0

2010-11

2011-12

2012-13

2013-14

2014-15

2015-16

2016-17

2017-18

100%

88%

Kennedy

85%

80

Roberts

60

40

Thomas

20

0

2010-11

2011-12

2012-13

2013-14

2014-15

2015-16

2016-17

2017-18

100%

88%

Kennedy

85%

80

Roberts

60

40

Thomas

20

0

2010-11

2011-12

2012-13

2013-14

2014-15

2015-16

2016-17

2017-18

Kennedy sounded defeated in some of his final term’s work, as Supreme Court critics noted. In his concurrence on the decision to uphold the travel ban, he wrote: “There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects.”

Robert Barnes contributed to this report.

Correction: A previous version of this story incorrectly stated the vote count of Jennings v. Rodriguez.

About this story

Data from SCOTUSblog, the Supreme Court Database, Oyez.

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