Friday, 24 November, 2017

Big cases, retirement rumors as Supreme Court nears finish

Enlarge  Microsoft in Dublin Enlarge Microsoft in Dublin
Lillian Steele | 27 June, 2017, 11:26

His departure from the Court during a Trump presidency, with his successor chosen from a list bequeathed by the Federalist Society or the Heritage Foundation and the Senate in the hands of Mitch McConnell, would eliminate the judicial branch as an effective check-and-balance against unfettered partisan power.

"That came through in spades today not just in the Arkansas case, but in his separate concurrence in a case striking down a Missouri program that refused to provide otherwise available funds for preschool playgrounds to schools affiliated with religious institutions", Vladeck said.

Replacing Kennedy with an even more conservative judge would be a huge win for President Donald Trump and would give conservative judges a 5-4 majority. But he's also consistently voted with progressives, helping to save whatever is left of affirmative action and the constitutional right to choose.

Speculation about a Kennedy retirement was sparked partly because he was slow to hire clerks for the court's next term. "The longer he stays on the court the greater the chance he can shape the legal doctrine for years to come".

The court also agreed to take up a case that touches on Kennedy's landmark 2015 opinion clearing the way for same-sex marriage.

Second, because I think he absolutely loves being the key swing vote on so many cases. One was Thomas. The other was Gorsuch.

Kennedy could still announce his retirement at any time, though the last day of the term was seen as an opportune moment.

"As the court's most important Justice - at the center of the institution's ideological balance - Justice Kennedy's ability to bridge the divide between left and right on critical issues such as the right to access abortion can not be overstated", said Elizabeth Wydra, president of the Constitutional Accountability Center to CNN Monday. He has been the crucial vote.

"Justice Gorsuch has shown himself to be the conservative ideologue many predicted he would be and not the moderating check on the executive branch as others suggested he would be", said Michele Jawando, a lawyer with the liberal Center for American Progress. Many times during his three decades on the bench, Kennedy has been the swing vote between the Court's liberal and conservative wings in high-profile cases.

Is Anthony Kennedy preparing to retire? The evidence for this seems scant, but he is 81 years old and it wouldn't be a big shock if he did. He's been considering retirement. Republican Senators refused to begin the appointment process for former President Barack Obama's choice to replace Scalia, Merrick Garland, reasoning that it was too close to the election and that the next president should have their choice. At a minimum, he is so far living up to Trump's claim that he would be a conservative in the mold of the man he replaced, Justice Antonin Scalia, who died past year. And that led Senate Republicans to change the rules to end filibusters of Supreme Court nominations. But we'll know soon enough. Neither do you. This is yet another one of these insipid inside-Washington stories where the few people who know aren't talking and the many people who are talking don't know.

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