Justice Kennedy Retires: Initial Considerations for Congress (CRS Report for Congress)
| Release Date |
Revised June 28, 2018 |
| Report Number |
LSB10159 |
| Report Type |
Legal Sidebar |
| Authors |
Andrew Nolan, Michael John Garcia |
| Source Agency |
Congressional Research Service |
| Older Revisions |
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Summary:
On June 27, 2018, hours after the Supreme Court released its final opinions for the term, Justice Anthony
M. Kennedy, announced that, effective July 31, 2018, he would retire from active service as an Associate
Justice of the Supreme Court. Nominated to replace Justice Lewis Powell in 1987, Justice Kennedy has
served on the Court for more than three decades. Like his predecessor, Justice Kennedy has often been
referred to as the Court’s “swing” vote. Justice Kennedy has pushed back against such a moniker,
declaring in a 2015 speech that “[t]he cases swing, I don’t.” But his central role on the Court in recent
decades, and in particular in the Roberts Court era, cannot be overstated. Since the Roberts Court began in
2005, Justice Kennedy has been the justice who cast his votes most often with the majority of the Court in
all but three terms. (Chief Justice Roberts edged out Justice Kennedy in the most recent term and the
October 2007 term, while Justice Breyer was the most frequent justice in the majority during the October
2014 term). This Sidebar highlights various areas of law in which Justice Kennedy—either by authoring
or joining a Supreme Court opinion—proved consequential to the trajectory of Supreme Court
jurisprudence. In so doing, this post provides a broad overview of key legal issues Congress (and, more
specifically the Senate, through its advice and consent role) may wish to consider as it reflects on Justice
Kennedy’s jurisprudence and how his eventual successor might shape the future of the Court, Congress,
and the nation as a whole.
