Justice Anthony Kennedy To Retire From U.S. Supreme Court Justice Kennedy is a moderate and a champion for the gay-rights movement. President Trump will likely replace him with a staunch conservative, which would fundamentally shift the culture of the court.
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Supreme Court To Lose Its Swing Voter: Justice Anthony Kennedy To Retire

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Supreme Court To Lose Its Swing Voter: Justice Anthony Kennedy To Retire

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Supreme Court To Lose Its Swing Voter: Justice Anthony Kennedy To Retire

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MARY LOUISE KELLY, HOST:

The decider - that is the role that Justice Anthony Kennedy has played on the Supreme Court for a long time - 30 years. He has played a consequential role authoring decisions that remade the face of marriage in America, and he wrote all four of the court opinions that recognized gay and lesbian rights.

AUDIE CORNISH, HOST:

Justice Kennedy is 81 years old. His retirement will undoubtedly spark a furious battle over the nomination and confirmation of a successor. Joining us now is NPR legal affairs correspondent Nina Totenberg. Welcome to the studio.

NINA TOTENBERG, BYLINE: Hi there.

CORNISH: So let's start with why Kennedy is so important, why this departure's such a big deal.

TOTENBERG: Well, for decades, Kennedy sat at the center of the Supreme Court, his vote often determining the outcome of really the hottest legal issues of the day, whether it was gay rights, abortion, the death penalty, the war on terror, school prayer, gun rights, race or campaign finance. Kennedy's vote was so often decisive that, as one justice put it ruefully, there are times the rest of us might as well go home. And because the Supreme Court itself is now more divided than ever between Democratic and Republican appointees, a Trump-named successor is likely to tip the balance decidedly to the right, creating a hardcore conservative majority of a kind not seen probably in three-quarters of a century.

CORNISH: And it goes without saying that we can probably expect a furious confirmation battle in the Senate, right?

TOTENBERG: You bet. Republican leader Mitch McConnell is certain to try to win confirmation of any Trump nominee before the election. And if that were not enough to provoke a battle, there is the fact that Democrats remember with rage how McConnell blocked any consideration of President Obama's appointment of Judge Merrick Garland to the high court for nearly a year after the death of conservative Justice Antonin Scalia and then how Republicans went on to abolish the filibuster so that they could win confirmation of Trump nominee Neil Gorsuch.

CORNISH: Nina, being the swing vote for the last 30 years, give us a sense of some of the issues where Justice Kennedy really made a mark.

TOTENBERG: Well, more than any other justice, he was responsible for the advance of LGBT rights, writing all four of the court's opinions over nearly two decades and ultimately declaring marriage between two people of the same sex a fundamental right protected by the Constitution just as marriage between two people of different races is protected.

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ANTHONY KENNEDY: No union is more profound than marriage for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family.

TOTENBERG: But the past does not portend the future, he said, and the Founding Fathers knew that they were creating a constitution to create rights of all persons to enjoy liberty as we learn its meaning.

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KENNEDY: They knew times can blind us to certain truths, and later generations can see that laws once thought necessary and proper in fact serve only to oppress.

TOTENBERG: The same-sex marriage cases may have been the most momentous of his career, but they were hardly the only decisions to have a profound effect on the country. For example, his 2010 decision written for a narrow 5 to 4 majority similarly remade the way political campaigns are conducted in the nation. The decision unleashed an ever-growing flood of cash and reversed a century-old legal understanding that had sought to prevent corruption by barring corporations and later labor unions from spending their general treasury funds on candidate elections. For Justice Kennedy, though, reversing that legal understanding from the early 1900s was the realization of a long-held view of free speech.

(SOUNDBITE OF ARCHIVED RECORDING)

KENNEDY: Political speech is indispensable to decision-making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual. Government may not suppress political speech on the basis of the speaker's corporate identity.

TOTENBERG: So hold onto your hats; we're in for a hell of a ride.

CORNISH: What could change forward when you think about concrete shifts?

TOTENBERG: Well, just for starters, Roe v. Wade might be reversed. Lots of federal regulations might be thrown out, might be a different, more - less tolerant view of gun regulation and affirmative action. He was the fifth vote to uphold affirmative action in higher education. That could change, too - so as REM once put it, the end of the world as we know it.

CORNISH: That's NPR's Nina Totenberg. Nina, thank you.

TOTENBERG: Thank you.

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