NPR Politics Podcast Analyzes Supreme Court Justice Anthony Kennedy's Retirement : The NPR Politics Podcast Supreme Court Justice Anthony Kennedy announced his retirement today, setting the stage for an epic political battle over his replacement. This episode: Reporter Sarah McCammon, congressional correspondent Susan Davis, editor and correspondent Ron Elving and legal affairs correspondent Nina Totenberg. Email the show at nprpolitics@npr.org. Find and support your local public radio station at npr.org/stations.

Analysis: Supreme Court Justice Anthony Kennedy's Retirement

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JAMES: Hi. This is James (ph).

STEPHANIE: And this is Stephanie (ph).

JAMES: We're here in Valencia, Spain, overlooking the Mediterranean Sea, celebrating the San Juan festival.

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SARAH MCCAMMON, HOST:

4:19 p.m., Wednesday, June 27.

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MCCAMMON: Hey there. It's the NPR POLITICS PODCAST. Justice Anthony Kennedy announced this afternoon that he'll be retiring from the U.S. Supreme Court. We're here to talk about his legacy and what his vacancy means for American politics. I'm Sarah McCammon. I'm covering the White House.

NINA TOTENBERG, BYLINE: I'm Nina Totenberg, NPR's legal affairs correspondent.

RON ELVING, BYLINE: And I'm Ron Elving, editor correspondent.

MCCAMMON: Kennedy's vacancy means President Trump will have the chance to fill another seat on the high court, a decision the president touted this afternoon when talking about Kennedy's retirement. We're going to talk about the politics of this later. But to fully grasp the decision the president will be making, it's important to understand the role Justice Kennedy has played on the court. So, Nina, you know this well. Who is Justice Kennedy?

TOTENBERG: Well, at the moment, the Supreme Court is divided between four very, very conservative justices, four liberal justices, who in a previous era might've been called moderate conservatives but on this court are considered liberal, and Justice Kennedy, who is by and large a conservative justice but, on some civil liberties issues, will swing in the way of the liberal wing of the court.

And so he has been the decider on an enormous number of cases, whether you're talking about same-sex marriage and gay rights, whether you're talking about gun rights, whether you're talking about campaign finance, whether you're talking about abortion. In all of those cases, he has cast deciding votes. And when he is replaced by a more conservative member of the court, this court will be more conservative, I suspect, than any court in three-quarters of a century.

MCCAMMON: What do we know about why Justice Kennedy is leaving now?

TOTENBERG: You know, he's almost 82 years old. It was pretty clear to me that he would've retired last year or sooner than this. I do think he had concerns about Trump. But one of his children, at least, is a friend of people in the Trump administration, his son. His daughter, I'm told, was a little more antsy about it. But I think he genuinely wanted to spend more time with his family, doing things like going to the ballet, going to concerts going to see Shakespearean plays, going to Mass every day, which he does. I think he wanted his private life back at this endpoint of his life.

ELVING: A year ago, many people thought it might be the magic moment for Anthony Kennedy to retire. He had been serving since 1987, so it was, in a sense, his 30th anniversary, at least of his appointment. He was turning 80. He had a big party for all of his clerks back over the years. And it seemed like the magic moment to do it. And, obviously, President Trump was sending him every signal not only with a Neil Gorsuch appointment - Neil Gorsuch was somebody that Kennedy could feel comfortable with. There were a number of former Kennedy clerks on the list that was floating around. So it seemed as though every signal was being sent to Kennedy that this would be a good time to go and that it would be okay and that he would be replaced by somebody he'd be simpatico with.

Now, at that same time, Kennedy seemed to have a number of cases that he wanted to consider or tee up coming up in the next term. So he was thinking perhaps about redistricting. A big case was coming up there. He was thinking about some of the challenges that might be brought to his same-sex marriage decision. And all of these things kind of came true. But in the end, he did not render the kinds of decisions in those cases that people were anticipating from one last year of Anthony Kennedy. So there's a little bit of a disconnect there. And perhaps it would have been just as appropriate for him to go a year ago. And he may very well, as Nina has been saying, have had genuine personal reasons for wanting to go.

MCCAMMON: So as we heard, he has been the decider in many important decisions, sometimes siding with the liberal side, sometimes with the conservative side. So Justice Kennedy's legacy clearly is going to be the same-sex marriage decision, you know, huge shift in American culture and public policy. Tell us, Nina, a little bit about what he wrote in that case.

TOTENBERG: Well, he wrote a whole series of cases. And they lay out a view that he ultimately came to believe included recognition of same-sex marriage. I don't think he necessarily started there. Here's what he said in announcing the same-sex marriage decision about why marriage is so important.

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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: Remember that in the early 2000s, the prevailing and existing and standing Supreme Court opinion on gay rights was that they didn't have any. The court in 1986 had upheld a law that made it a crime to have consensual sex in the privacy of one's home. And in 2003, Justice Kennedy wrote the opinion reversing that decision. And here's how he explained that the Founding Fathers would approve - even though they hadn't thought about gay rights in the 17 and 1800s, how the Founding Fathers provided for this kind of evolution of legal views.

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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: Those are both same-sex marriage cases. But here is a decision that infuriated liberals, when he long believed that corporations should have the right of free speech just as individuals do. And the decision he wrote for the court unleashed floods of cash into the political system and undid nearly a century of understanding about what Congress can do to prevent corruption.

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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.

ELVING: We should say that is the Citizens United decision, which is cited quite often by people who don't like it and held responsible, in essence, for that flood of cash that you just mentioned a moment ago, not just from corporations and unions who were empowered to do so, but by powerful new groups of people with very deep pockets who have invested very heavily in politics since Citizens United.

TOTENBERG: But, you know, when you look at Anthony Kennedy's tenure, especially after Justice O'Connor retired - because for a while there were two of them who were sort of the center conservatives, then he was the only one left. When you look at his tenure and you look what is likely to come down the pike from the Trump administration and from Congress unless the Democrats take over the entire Congress, what you see is that you're looking, as I said, at a court, once there is a Trump nominee confirmed - and that's sort of an interesting topic. But I do think the Democrats are sort of powerless to stop it. Once there is a second Trump nominee confirmed, this court will not be anything remotely like the Supreme Court that any of us currently under the age of 90 have ever covered.

MCCAMMON: I find myself wondering, you know, in this moment when our - we talk so much about how divided this country is, you know, a swing vote is kind of a - it's kind of a rare thing anyway - right? - but especially now. That swing vote, in recent memory, has been so important. Do we still have a value for a swing vote, for somebody who comes down the middle and doesn't side with one party or the other all the time?

ELVING: It's beginning to seem as though a swing vote is a bit of an anachronism in our politics, and perhaps this is all a great metaphor for that. Certainly, it has to do with the personal dynamics and mechanics of the court and nine individuals. But it also reflects what's happened to our body politic, which is both of our parties are moving away from the center. They're nominating more ideologically driven candidates. They're looking for people who are more leftward on one side and more rightward on the other side.

TOTENBERG: And, you know, the Supreme Court, the justices, to a man and woman, want us to believe that this is not a political institution. And I would say it is not a partisan institution, but it is an ideological institution. And it has not been this ideologically divided, certainly, in more than a half century, more than that.

MCCAMMON: You've spent so much time with these justices. And I want to ask you, what do you remember? What's going to stick out for you about Justice Kennedy?

TOTENBERG: I have this image of him - his law clerks tell me that they would - had a big white board up. And he would put up the arguments on one side and on the other, and he would debate with his law clerks about them. And sometimes he was - he agonized about it and changed his mind, which earned him the ridicule of some conservative professors who called him Flipper. But he was an extraordinarily nice man. When you looked at his financial assets, he had less money than anybody else on the court. His biggest asset was his house. That's it. And...

MCCAMMON: Like most Americans.

TOTENBERG: Like most Americans. He bought his suits off the rack. And I'm - I remember one time when he was walking up the Supreme Court steps about - he'd taken a walk around the building, I suppose to clear his head or something. And there was a family there. And they wanted somebody to take their picture. So - this is before the era of selfies. So they saw this man walking by. They completely did not recognize him. They asked him if he would mind taking their picture. He said he would be delighted. He took their picture, and he kept on walking.

MCCAMMON: That's really, really cute.

(LAUGHTER)

MCCAMMON: Well, I think that does it for us. Nina, thanks much for joining us on what I know has been a crazy day for you.

TOTENBERG: It's my pleasure to be here.

MCCAMMON: And Ron, stick with us. We need to take a quick break. But when we get back, we'll talk about the fight over who will take Kennedy's seat on the court.

And we're back and joined by congressional correspondent Susan Davis. Hey, Sue.

SUSAN DAVIS, BYLINE: Hey, Sarah.

MCCAMMON: So you're on Capitol Hill. You've been running around talking to lawmakers about Justice Kennedy's retirement. What are you hearing over there?

DAVIS: You know, I think the one point that senators will agree on in this confirmation battle is that this might be one of the most consequential votes they will cast as senators and one of the most consequential nominations to the court. I think this is radically different than Neil Gorsuch because Neil Gorsuch was a conservative replacing a conservative on the Supreme Court. He took the seat of Antonin Scalia. Justice Kennedy is seen as the swing seat on the vote, someone who has often sided with Republicans, sometimes sided with democratic legal arguments.

Democrats in particular, I think, realize that this is going to be a very uphill battle for them. And I think Republicans see a huge opportunity - in their long-term goal to remake the court, but also as an election year issue - that we know that the issues of judicial fights and nominations are very close to the core base voter of the Republican Party. And if they play their cards right, they may be able to maximize this in what has been a year that, otherwise, they've been facing a lot of headwinds.

MCCAMMON: And Ron, you know, when President Trump was running for office, knowing how important this issue would be to the base of the Republican Party, he issued a couple of lists of potential judicial nominees. There are a lot of people on those lists. But what do we know about who he might nominate, what kind of person he might choose?

ELVING: The names are dominated by people who are currently serving on the U.S. circuit courts of appeal around the country, most of whom on his list have established reputations as reliable conservatives, people who like the idea of the Constitution being interpreted more as it was written, more as it was interpreted by Antonin Scalia.

DAVIS: And also, they want someone young, you know? They are looking for people in their late 40s, early 50s, a justice that, once approved, can sit on the court for a generation. And that has been a driving force, too, that they don't want older nominees. They want people who they can rely on on the court for, you know, essentially the rest of many of their lives.

MCCAMMON: Yeah. And Majority Leader Mitch McConnell, as you know, has already said the Senate will confirm President Trump's nominee, quote, "this fall," ahead of, you know, a big event (laughter) - new Congress...

DAVIS: Right.

MCCAMMON: ...Next year. How likely is that timeline?

DAVIS: I would not bet against Mitch McConnell when it comes to that timeline. All of the rules and procedure are in his favor. Remember that Senate Republicans changed the rules of the Senate in 2017 to confirm Neil Gorsuch. They invoked the nuclear option on Supreme Court nominees changing the rules for confirmation from 60 votes down to 50. That makes it a whole lot easier. It's not as easy as it may seem because Mitch McConnell has a functional 50-vote majority with John McCain, the senator from Arizona who has not been to the Senate this year, and the likelihood that this is probably going to be a pretty partisan fight.

But according to his timeline - you know, Justice Kennedy said he'll serve until July. Even in a really ambitious timeline where everything goes smoothly, a Supreme Court nomination process on Capitol Hill can easily take two months - just the vetting process. You know, they come up, they meet with every senator. There is a very methodical, deliberative process to this, which - I think Mitch McConnell also sees that to his advantage. If it's a nominee that the party's really supportive of, they would probably love to be having that vote, I'd say, early- to mid-October (laughter), ahead of the midterm elections.

So I think Democrats are also, right now, strategizing how much of a fight that they're going to put up. And I do think that they are trying to delay the vote. It's citing Mitch McConnell, saying, you know, he blocked the vote of Merrick Garland in 2016 under the argument that, hey, voters - this is a huge decision, and voters should have a say in the election before we make that call. And Chuck Schumer made a similar argument today on the floor.

MCCAMMON: Yeah. And we'll get to that in a second. You know, Ron, these fights for a Supreme Court pick are always contentious and always important. But how much more is at stake this time? How much more heated do you expect this one to be?

ELVING: Well, as Sue has said, this is a pick that's going to change the scoreboard. It was going to be impossible to get a justice more of a landmark conservative than Antonin Scalia. Neil Gorsuch is doing everything he can to live up to that billing and possibly more. But it was going to be a replacement for Scalia coming from Donald Trump.

Now, we're looking at someone who, at least on many cases having to do with abortion, having to do with same-sex marriage, was seen as a swing voter, somebody who could limit the right to abortion, but still believed that Roe v. Wade was not wrongly decided. We can expect Donald Trump to look for somebody who is ready to vote to overturn Roe v. Wade. And certainly, if you want to get that positive effect from those hardcore voters in the Republican Party, you better pick somebody like that. The Democrats are going to need some help to make a difference. They've got to get at least one vote - at least one vote, probably two, to swing over from the Republican side and oppose the nominee.

MCCAMMON: So in this confirmation fight, there's going to be a lot of pressure on Republican senators to try to get somebody to change their vote. Who should we be watching?

DAVIS: The three that I'm going to be watching pretty closely are Heidi Heitkamp in North Dakota, Joe Manchin in West Virginia and Joe Donnelly of Indiana because those are the only three Democrats who voted for Neil Gorsuch. So they have proven that they are open to voting for conservative jurists. And that was a very political vote as well because they were mindful of their reelection in 2018. So they're going to be asked a lot of questions in the hallways throughout this process.

The other group that I would say are pro-choice Republicans, of which there are only two. And they are female Senators Susan Collins of Maine and Lisa Murkowski of Alaska. And if this comes down to a very partisan vote and abortion rights are a central focus of this debate, which I think they may well be, those two senators could be the decisive votes.

MCCAMMON: And I want to talk about what Minority Leader Chuck Schumer had to say today.

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CHUCK SCHUMER: Millions of people are just months away from determining the senators who should vote to confirm or reject the president's nominee. And their voices deserve to be heard now as Leader McConnell thought they should deserve to be heard then. Anything but that would be the absolute height of hypocrisy.

MCCAMMON: It sounds a lot like Republicans - we all remember in 2016 when Justice Scalia suddenly passed away. President Obama, of course, was in office, and Republicans blocked his nominee. Can that happen this time in reverse?

DAVIS: No. It can't, and it won't. Last month, my colleague Kelsey Snell up here on the Hill and I sat down with Mitch McConnell, and we talked to him about that and that if there was going to be a Supreme Court vacancy. And he said he would move to fill it this year. And I asked him. I said, what about the Merrick Garland precedent that - don't voters have to weigh in if it happens close to an election? And he called that argument foolish and that in his mind, the distinction is the difference between a presidential election year and a midterm election year and that it's presidents who get to nominate Supreme Court nominees and that is why - if we were closer to 2020, the McConnell precedent might apply. But because this is a midterm election, he is just sort of swatting away the Democratic argument. Quite frankly, Democrats don't have a lot of recourse here. They just don't have a lot they can do to stop it.

ELVING: But let's consider that it's the senators who are going to vote on the nominee. And those are the people who need to be chosen in November of this year. So Barack Obama had a perfect constitutional right to name someone, just as Donald Trump does today. The question is, who's going to vote on the confirmation? So, yes, the Mitch McConnell precedent, which he would obviously rather not call hypocrisy, is really not applicable to a midterm election. It's only a precedent for a 2020 election year. So if you really believe that people should have the right to choose the senators who are going to confirm, this is the time to do it.

DAVIS: Where I do think Democrats will use this is more in - outside of this building and not about swaying senators' votes but in terms of motivating voters and getting them to care and invest and show up in the midterms because I do think the decision to block Merrick Garland was one of the actions that started to light a fire on the left to show to them why these Supreme Court fights matter and that we are seeing Democrats and the left engage in judicial fights in a way that they just simply haven't in any way compared to the right.

The - one of the first groups - it's called Demand Justice - just formed last month. And it's made up of Obama and Clinton alums still smarting from the decision to block Merrick Garland and trying to build up sort of that ideological base fight outside machine to get liberal progressive voters to think and care and show up about issues like Supreme Court nominees.

MCCAMMON: Maybe Democrats are moving in that direction. But, you know, historically they haven't been known, I don't think, to be as motivated by the Supreme Court. I mean, you know, I covered the 2016 campaign, and I heard Republican voter after Republican voter mention the Supreme Court as a reason they were voting for Donald Trump. They wanted a conservative majority. Even if they weren't thrilled with other aspects of Donald Trump, they did not want Hillary Clinton to nominate replacements for anybody that might leave. Ron, do you see - I mean, I guess how much of an opportunity there and how much of a challenge do Democrats have to motivate their voters on this issue?

ELVING: You know, you're absolutely right. This was an absolutely critical issue for Republican voters, particularly among religious voters who did not necessarily approve of Donald Trump on a personal level. But this was the double brilliance of what Mitch McConnell did. Not only did he block Merrick Garland and keep a seat open that Trump could fill, but he also gave voters a reason to go out and vote for Donald Trump even if some of them had to hold their noses to do it.

Now the question is for Democrats, which is going to be stronger in the fall? Will it be the gratitude of Republicans coming out to vote in a thankful mode because they have now gotten two Supreme Court justices approved, or will there be the outrage of Democrats who may have woken up to realize that the seat that was rightfully Obama's to fill was never filled and now Donald Trump has had two to fill and sauce for the goose was clearly not sauce for the gander? Which is stronger - gratitude or rage?

DAVIS: Also, if you can't make voters connect why the Supreme Court matters on this nomination, then I don't think it's going to work. The consequences of the swing vote on the court and which way that vote might go are hugely consequential - right? - I mean, to abortion rights to affirmative action to any number of decisions where Anthony Kennedy has been the swing vote.

If this was the opposite of Hillary Clinton and - back on Earth 2, where Hillary Clinton is president, if she got to fill Anthony Kennedy's nomination, it would be equally a big deal. I mean, this is a seat on the court that for years has been talked about as when it becomes vacant would be sort of a battle for the soul of the Supreme Court. So if Democrats are not capable of getting the already motivated voter to sort of dial in on this nomination fight, then they will probably never be able to get their base to care about the Supreme Court as much as conservative and evangelical voters do.

MCCAMMON: All right. We'll leave this there for now. And we'll be back tomorrow with our weekly roundup. If you haven't gotten enough Supreme Court news yet, we'll be breaking down some of the court's major decisions on unions and abortion in tomorrow's episode. I'm Sarah McCammon. I'm covering the White House.

DAVIS: I'm Susan Davis. I cover Congress.

ELVING: And I'm Ron Elving, editor correspondent.

MCCAMMON: Thanks for listening to the NPR POLITICS PODCAST.

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