Justice Anthony Kennedy: His Jurisprudence and the Future of the Court
Released: 2018-07-11T00:00:00

Summary: On June 27, 2018, Justice Anthony M. Kennedy announced that, effective July 31, 2018, he would retire from active service as an Associate Justice on the Supreme Court of the United States. His decisive role on the Court, particularly since the Roberts Court era began in 2005, cannot be overstated. The Roberts Court era has witnessed the Court issue a number of landmark rulings, many of which have involved matters where the sitting Justices were closely divided. Justice Kennedy typically voted with the majority of the Court in such cases. Since the October 2005 term that marked the beginning of the Roberts Court, Justice Kennedy voted for the winning side in a case more often than any of his colleagues in 9 out of 12 terms.

Unlike several other Justices on the Court, Justice Kennedy did not necessarily subscribe to a particular judicial philosophy, such as originalism or textualism. Instead, Justice Kennedy's judicial approach seemed informed by a host of related principles. First, Justice Kennedy's views on the law were often grounded in concerns for personal liberty, particularly freedom from government interference with thought, belief, expression, and certain intimate conduct. His emphasis on liberty manifested itself in a range of opinions he wrote or joined during his tenure on the Court, including on issues related to free speech, religious freedom, and government policies concerning same-sex relationships. Second, the structural protections of the Constitution—i.e., restraints imposed on the federal government and its respective branches by the doctrines of federalism and separation of powers—also animated Justice Kennedy's jurisprudence. For Justice Kennedy, separation of powers was a "defense against tyranny," and he authored or joined a number of Court opinions that invalidated on separation-of-powers grounds intrusions on the executive, legislative, or judicial functions. Likewise, during the Rehnquist Court and Roberts Court eras, Justice Kennedy joined several majority opinions that recognized federalism-based limitations on the enumerated power of the federal government, established external limitations on Congress's legislative powers over the states, and reaffirmed protections for state sovereignty. Third, Justice Kennedy's jurisprudence was undergirded by his view that the Court often has a robust role to play in resolving issues of national importance. With Justice Kennedy casting critical votes, over the last 30 years the Court has reasserted its role in a number of areas of law in which it was previously deferential to the judgment of the political branches.

Given Justice Kennedy's outsized role on the Roberts Court, whoever succeeds him could have an important influence on any number of areas of law. In particular, Justice Kennedy's votes were critical to the outcome of numerous Court decisions on matters relating to abortion, business law, civil rights, the death penalty, the regulation of elections, eminent domain, the environment, federalism, the First Amendment, gun rights, immigration, national security, oversight of the administrative state, and separation of powers. Accordingly, Justice Kennedy's jurisprudence in these areas—particularly in cases where he was the deciding vote—may be especially relevant to the Senate as it determines whether to approve the President's nominee to replace the soon-to-be-retired Justice.

On July 9, 2018, President Trump announced the nomination of Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) to– fill the impending vacancy on the Supreme Court caused by Justice Kennedy's scheduled retirement. CRS reports analyzing Judge Kavanaugh's jurisprudence on particular areas of the law, as well as a tabular listing of lower-court decisions in which he authored opinions, are in preparation.


paragraphs: O n June 27, 2018, Justice Anthony M. Kennedy announced that, effective July 31, 2018, he would retire from active service as an Associate Justice on the Supreme Court of the United States. Nominated to replace Justice Lewis Powell in 1987, Justice Kennedy has been one of the longest-serving Justices in the history of the Court. His decisive role on the Court, particularly during the Roberts Court era, cannot be overstated. While Justice Kennedy has been a critical vote on the Court for much of his 30-year tenure, since the October 2005 term that marked the beginning of the Roberts Court, Justice Kennedy has been the Court's "median Justice," voting for the winning side in a case more often than any of his colleagues in 9 out of 12 terms. 

During this era, the High Court issued a number of landmark rulings that spanned the ideological spectrum. For instance, during the Roberts Court era, the Court held that the Fourteenth Amendment to the Constitution requires states to recognize marriages between same-sex couples in the same circumstances as they recognize marriages between opposite-sex couples; invalidated state laws viewed to impose an "undue burden" on a woman's right to terminate a pregnancy; afforded enemy belligerents detained at Guantanamo Bay certain procedural protections; and concluded that the Eighth Amendment prohibits the states from imposing the death penalty or a sentence of life without parole in certain circumstances. At the same time, since 2005, the Court also struck down campaign finance laws banning corporate independent expenditures for electioneering communications; invalidated Section 5 of the Voting Rights Act of 1965 on federalism grounds; recognized that the Second Amendment protects an individual's right to possess a firearm and to use that firearm for lawful purposes; upheld President Trump's proclamation placing entry restrictions on foreign nationals from specified countries; and invalidated on First Amendment grounds state laws that aimed to regulate certain commercial activities. In all of these cases, the sitting Justices were closely divided, and the composition of Justices in the deciding majority in such cases shifted dramatically from case-to-case with one exception: Justice Kennedy. 

Perhaps because of his pivotal role on the Court, like Justice Powell whom he succeeded, Justice Kennedy was viewed by many to be the Court's "swing" vote. The label of being a "swing vote" on the Court, however, may invite misleading conclusions about Justice Kennedy's approach to cases. As several commentators have noted, Justice Kennedy's jurisprudence did not necessarily focus on compromise or balance in the Court's decisions, but was instead, at times, informed by principles that resulted in votes that could not be categorized uniformly by a conservative or liberal ideology. For his part, Justice Kennedy resisted the "swing vote" moniker, declaring in a 2015 interview that "[t]he cases swing, I don't." As a result, an examination of the underlying cases in which Justice Kennedy cast critical votes during the Roberts Court era may be necessary to fully gauge his jurisprudence and the significance of his retirement.

This report provides a broad overview of Justice Kennedy's approach to the law, with a particular emphasis on how he interpreted the Constitution. The report then discusses what his retirement may mean for the future of the Court in various areas of the law, broadly noting key legal decisions during the Roberts Court era in which Justice Kennedy cast a decisive vote. The report does not, however, purport to discuss fully every area of law that Justice Kennedy considered during his more than three decades of service on the Court. Nonetheless, guided by several tables in the Appendix noting the opinions in which Justice Kennedy cast decisive votes during the Roberts Court era, the report highlights key aspects of Justice Kennedy's jurisprudence and the key legal issues where his absence from the Court could result in a shift in the Court's jurisprudence.

On July 9, 2018, President Trump announced the nomination of Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) to fill the impending vacancy on the Supreme Court caused by Justice Kennedy's scheduled retirement. CRS reports analyzing Judge Kavanaugh's jurisprudence on particular areas of the law, as well as a tabular listing of lower-court decisions in which he authored opinions, are in preparation.
subsections: section_title: An Overview of Justice Kennedy's Jurisprudence
paragraphs: As one legal scholar has observed, "identifying Justice Kennedy's judicial philosophy is no easy task." Unlike Justice Antonin Scalia, his colleague for nearly 28 years on the High Court, Justice Kennedy did not subscribe to a particular judicial philosophy, such as originalism or textualism. In his 1987 confirmation hearings, Justice Kennedy eschewed committing himself to a "single, overarching theory" of legal interpretation. For instance, in response to a question posed by Senator Robert Byrd concerning the role of history when interpreting the Constitution, the nominee opined that a judge cannot rely only on "history in order to make the meaning of the Constitution more clear," and that "new generations" can also "yield new insights and new perspectives" that change "our understandings" of the Constitution. These and similar statements made during his confirmation hearing appear to have presaged the approach taken by Justice Kennedy on the Court, wherein he often synthesized several approaches to judging to guide his decision as to the appropriate result in a given case. Justice Kennedy's approach to judging appeared informed by certain guiding principles, three of the most determinative of which are discussed below. 
subsections: section_title: Individual Liberty
paragraphs: Justice Kennedy's jurisprudence was often grounded in concerns for personal liberty, that is, freedom from government interference with "thought, belief, expression, and certain intimate conduct." The Justice's concerns for liberty manifested themselves in several free speech cases, wherein Justice Kennedy took the view that the First Amendment prohibited government actions that told individuals what they could say or what they could hear. For instance, on the day before he announced his retirement, Justice Kennedy authored a concurring opinion to explain how government paternalism with respect to speech could "imperil[]" liberty:

It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. . . . Freedom of speech secures freedom of thought and belief.

In this vein, Justice Kennedy, on behalf of the Court in Citizens United v. FEC, struck down a federal campaign finance law banning corporate independent expenditures for electioneering communications, rejecting arguments that the government needed to police corporate political speech. For Justice Kennedy, when the "[g]overnment seeks to use its full power . . . to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought" in violation of the First Amendment. This rationale undergirded several other cases in which Justice Kennedy viewed the First Amendment to impose clear limits on the government's ability to regulate speech within the commercial sphere.

Justice Kennedy's emphasis on liberty also manifested itself in a number of decisions he authored or joined on issues implicating religion. For instance, in Church of Lukumi Babalu Aye v. City of Hialeah , Justice Kennedy, on behalf of the Court, struck down a set of ordinances enacted by a Florida city prohibiting animal sacrifice, viewing the challenged laws as designed to "persecute or oppress" adherents to the Santeria religion. In so doing, Justice Kennedy cautioned against "state intervention stem[ming] from animosity to religion or distrust of its practices," and identified what he viewed to be the "high duty" imposed on government officials by the First Amendment: to "commit[] government to religious tolerance." Quoting Lukumi 25 years later in his opinion for the Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission, Justice Kennedy concluded that a state civil rights commission violated its "duty" to not treat a party before it with hostility because of that party's religious beliefs. Likewise, expressing concern over the "danger[s] to liberty" that "lie" when the state excludes religious groups from a public forum or exhibits viewpoints based on hostility toward religion, Justice Kennedy wrote or joined several opinions that resulted in public spaces being opened for use by religious entities. Nonetheless, the soon-to-be-retired Justice viewed the constitutional requirement of tolerance to apply to how religious adherents treated the nonreligious, as well. Writing for the Court in Lee v. Weisman, Justice Kennedy held that the First Amendment's Establishment Clause prohibited a sectarian invocation and benediction at a public school graduation ceremony, maintaining that "prayer exercises in public schools carry a particular risk of indirect coercion" for objecting students, who may feel embarrassed or pressured by the state's action. 

Beyond the realm of the First Amendment, Justice Kennedy's liberty jurisprudence animated a number of decisions in which the Court struck down several federal and state laws on either equal protection or substantive due process grounds. In particular, his substantive due process cases seemed informed by a particular consideration related to liberty—the belief that the government must treat individuals with "dignity" —when concluding that a government measure either infringed upon an individual's right to privacy or involved the sanctioned animus toward a particular group. For instance, in Planned Parenthood of Southeastern Pennsylvania v. Casey, a plurality opinion of the Court authored by Justice Kennedy, along with Justice Sandra Day O'Connor and Justice David Souter, declared that the Constitution prohibits the government from interfering with certain life decisions "central to personal dignity and autonomy" because at the "heart of liberty" "is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." For the Casey plurality, "there is a realm of personal liberty which the government may not enter." And Justice Kennedy echoed the themes of Casey in his opinion for the Court in Lawrence v. Texas , where the Court struck down a law that criminalized homosexual sodomy on the grounds that the Due Process Clause gives all people the "full right to engage in private [sexual] conduct without government intervention." 

Lawrence was one of four opinions Justice Kennedy authored that, relying on a broad view of the concepts of liberty and dignity, invalidated laws on the grounds they interfered with the rights of persons who engage in same-sex relationships. First, in Romer v. Evans, the Supreme Court struck down an amendment to the Colorado Constitution prohibiting "all legislative, executive, or judicial action at any level of state or local government" designed to protect persons based on their gay, lesbian, or bisexual status. Writing for the Court, Justice Kennedy declared that an "inevitable inference" must be made that the Colorado law was "born of animosity toward the class of persons affected" and concluded that the law was enacted out of a "bare . . . desire to harm a politically unpopular group" in violation of the Equal Protection Clause of the Fourteenth Amendment. Building on the themes of Romer seven years later in Lawrence v. Texas, Justice Kennedy emphasized the "stigma" created by the Texas antisodomy statute and its implications for the "dignity of the persons charged," including the potential humiliation of having a charge appear on an individual's criminal record and having to register as a sex offender in several states. 

A decade after Lawrence , the Court in United States v. Windsor struck down the federal Defense of Marriage Act (DOMA), which mandated that the federal government not recognize same-sex marriages. Justice Kennedy's majority opinion declared that the "avowed purpose and practical effect of" DOMA was to interfere "with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power," by denying a host of federal benefits to those same-sex couples who were married under the laws of their respective states. As a consequence, the Court viewed DOMA as an attempt by Congress to stigmatize a particular group, because the "differentiation" of how same-sex marriage was treated under federal law "demean[ed] the [same-sex] couple" and "humilate[d] the tens of thousands of children now being raised by same-sex couples." 

Two years after Windsor , Justice Kennedy authored the Court's landmark ruling in Obergefell v. Hodges , deciding that the "right to marry" applies with "equal force" to same-sex couples as it does to opposite-sex couples. Specifically, the Obergefell Court held that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. In so holding, the Court concluded that a denial of marital recognition to same-sex couples ultimately "demean[ed]" and "stigma[tized]" those couples and any children resulting from such partnerships. Given this conclusion, the Court held that, while limiting marriage to opposite-sex couples may have once seemed "natural," such a limitation was inconsistent with the right to marriage inherent in the "liberty" of the person as protected by the Fourteenth Amendment. 

While liberty concerns informed Justice Kennedy's assessment of government activities addressing certain facets of life, it should be noted that these concerns were not overtly determinative in all instances. Justice Kennedy, for example, tended to have a more restricted view of the Fourth Amendment, as exemplified in his 2013 opinion in Maryland v. King , where, writing on behalf of the Court, the Justice concluded that taking a cheek swab of a criminal arrestee's DNA was a reasonable search that did not require a warrant. Moreover, on matters concerning government interference with personal property rights, Justice Kennedy joined several opinions declining to limit the scope of the government's power. Nonetheless, as discussed, Justice Kennedy's "capacious notion" of liberty and dignity and his skepticism toward governmental efforts that could be viewed to interfere with those values underscore much of his constitutional jurisprudence.

section_title: Structural Protections of the Constitution
paragraphs: The structural protections of the Constitution—i.e., restraints imposed on the federal government by the doctrines of separation of powers and federalism—also influenced Justice Kennedy's jurisprudence. With respect to separation of powers, even before Justice Kennedy joined the Court, he authored as a federal appellate judge an opinion, eventually affirmed by the Supreme Court, that invalided the legislative veto, a mechanism by which one or both houses of Congress could, without enacting new legislation, override executive action. Writing for the U.S. Court of Appeals for the Ninth Circuit, he identified two "principal purposes" of the separation of powers: "preventing concentrations of power dangerous to liberty and . . . promoting governmental efficiency." As a Justice on the Supreme Court, Justice Kennedy tended to emphasize the former principle in his decisions on separation of powers. Concurring in Clinton v. New York , which struck down the Line Item Veto Act of 1996, Justice Kennedy described the Constitution's separation of powers as "designed to implement a fundamental insight: concentration of power in the hands of a single branch is a threat to liberty." Accordingly, for Justice Kennedy, separation of powers was a "defense against tyranny," and, in this vein, the Roberts Court era witnessed Justice Kennedy authoring or joining a number of majority opinions that invalidated on separation-of-powers grounds intrusions on the executive, legislative, or judicial functions. 

Beyond emphasizing the importance of "horizontal" structural protections imposed by the Constitution upon the three branches of the federal government, Justice Kennedy's jurisprudence also placed significant importance on the "vertical" structure created by the nation's founding legal document respecting the sovereign roles of federal and state governments. During the Rehnquist and Roberts Courts, Justice Kennedy often found himself joining majority opinions that recognized federalism-based limitations on the power of the federal government, establishing limitations on Congress's legislative powers and reaffirming protections for state sovereignty grounded in part in the Tenth and Eleventh Amendments. At the same time, Justice Kennedy frequently concluded that when Congress acted within its enumerated powers and did not contravene any other federalism-based constraints on its power, Congress's power was supreme and therefore preempted conflicting state laws.

Like his separation-of-power decisions, Justice Kennedy's federalism jurisprudence was frequently grounded in liberty-based rationales. For instance, as Justice Kennedy maintained in his majority opinion in Bond v. United States , "[f]ederalism is more than an exercise in setting the boundary between different institutions of government for their own integrity." Instead, the Justice viewed federalism as "secur[ing] the freedom of the individual" by allowing "those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power" and "by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions." This central tenet of Justice Kennedy's judicial approach was captured by the joint dissent he coauthored in NFIB v. Sebelius :

Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril.

section_title: The Role of the Judiciary
paragraphs: Justice Kennedy's jurisprudence was also undergirded by a relatively robust view of the role of the Court, in which the Court, led by the Justice, began to exercise its power of judicial review with respect to new or formerly ignored legal issues. Like other aspects of his judicial approach, Justice Kennedy was not uniform in his views on judicial power. He recognized, at times, limits to the power of the judiciary, particularly in cases interpreting the justiciability requirements of Article III of the Constitution. For example, Justice Kennedy joined the Court's 2013 opinion in Clapper v. Amnesty International , which held that a plaintiff seeking injunctive relief from a court first had to allege that any injury he was going to suffer as a result of the complained-of action was "certainly impending." Likewise, in matters concerning the judiciary's role in scrutinizing national security decisions by the political branches, Justice Kennedy tended to view the Court's role more minimally. 

Nonetheless, during his time on the Court, Justice Kennedy voted to strike down federal or state laws as unconstitutional with greater regularity than most of his colleagues. Washington University Law's Supreme Court Database identifies Justice Kennedy, from the October 1988 term through the October 2016 term, as joining Court rulings striking down federal or state legislation with more regularity than 12 of the 16 Justices he served with during that period (Justices Harry Blackmun, William Brennan, Thurgood Marshall, and Byron White were Justice Kennedy's only colleagues from his tenure on the Court, through the October 2016 term, who were more likely to join such opinions). Justice Kennedy's willingness to invalidate federal or state laws may be indicative of his broad conception of the Court's role in resolving issues of national significance. As Justice Kennedy declared in an interview in 2005, the Supreme Court "make[s] more important decisions"—i.e., decisions that "will control the direction of society"—than the "legislative branch does—precluding foreign affairs perhaps."

In rulings where Justice Kennedy typically provided a critical vote, the Court in recent decades has made significant pronouncements in legal areas where it earlier had been silent or expressly recognized the decisions of the political branches as dispositive. For instance, in the era preceding Justice Kennedy's appointment to the High Court, a majority of the Court had concluded that the "political processes" (i.e., discretionary actions taken by Congress and the President), and not the Court, would be the primary means to enforce federalism-based limits on Congress's powers. However, with the Rehnquist Court came a shift in federalism jurisprudence, and the judiciary began to police the limits of Congress's powers vis-à-vis the states. Justice Kennedy's concurrence in United States v. Lopez included a robust defense for this shift in approach:

[T]he absence of structural mechanisms to require those officials to undertake [the] principled task [of "maintaining the federal balance"], and the momentary political convenience often attendant upon their failure to do so, argue against a complete renunciation of the judicial role. Although it is the obligation of all officers of the Government to respect the constitutional design, . . . the federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of Government has tipped the scales too far. 

Another example of how the Court's role ascended during Justice Kennedy's tenure concerned the Court's approach toward laws that discriminated against persons engaged in same-sex relationships. The decades that preceded Justice Kennedy's appointment saw the Court upholding laws criminalizing same-sex sodomy and summarily affirming rulings that rejected a constitutional right to same-sex marriage. However, as discussed, Justice Kennedy's 1996 opinion in Romer v. Evans ushered in a new era in which the Court began to scrutinize laws that denied certain rights to persons in same-sex relationships. In Lawrence, the Court reversed its earlier ruling with respect to the criminalization of same-sex sodomy, and 12 years later, Justice Kennedy's opinion for the Court in Obergefell recognized a constitutional right for same-sex couples to marry, marking a stark contrast to the Court's approach to such matters in the decades preceding Justice Kennedy joining the Court.

More broadly, Justice Kennedy's jurisprudence reaffirmed the role of the Court as the final expositor of the meaning of the Constitution. For example, in City of Boerne v. Flores , which invalidated the Religious Freedom Restoration Act of 1993's application to state governments, Justice Kennedy's majority opinion rejected a reading of older precedent from the Warren Court era that implied that Congress, through enacting legislation under the Enforcement Clause of the Fourteenth Amendment, could expand upon the rights the Court previously had recognized the amendment to protect. For Justice Kennedy, Congress's power under the Fourteenth Amendment was limited to "determine whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment," but the Court retained the power to determine the meaning of the Constitution and its precedents. The Supreme Court's interpretation of the Constitution ultimately "must control," rather than the interpretation advanced by another branch of government.

Justice Kennedy's view of judicial supremacy with respect to constitutional interpretation was not limited to clashes between the legislative and judicial branches. For example, in United States v. Windsor , Justice Kennedy's majority opinion rejected the argument that the Court lacked jurisdiction to adjudicate an appeal when both the plaintiff and executive branch defendant agreed as to the ultimate outcome of the case (i.e., that DOMA was unconstitutional). The Windsor Court believed that, if judicial review of the legality of a measure could be circumvented by the executive branch conceding a plaintiff's claim that a federal statute was unlawful, "[t]his would undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial department to say what the law is." In a similar vein, Justice Kennedy, in concluding on behalf of the Court in Boumediene v. Bush that enemy belligerents detained at the U.S. Naval Base in Guantanamo Bay, Cuba, were entitled to seek writs of habeas corpus, rejected the executive branch's argument that the constitutional writ of habeas could never extend to noncitizens being held outside of U.S. sovereign territory, regardless of the degree of control the United States exercised over the location. For Justice Kennedy, the Constitution "cannot be contracted away" through a lease between the U.S. and Cuban governments. The political branches lacked the power to "say 'what the law is'" and could not "switch the Constitution on or off at will." As a consequence, while Justice Kennedy may have occasionally recognized limits to the role of the Court in resolving legal disputes, opinions like Boumediene placed the Court, at least in the view of one legal commentator, at the "apex of power in the constitutional structure."

section_title: Justice Kennedy's Decisive Votes in Roberts Court-Era Cases
paragraphs: The principles that undergirded Justice Kennedy's judicial philosophy often cut across ideological lines, as his views on liberty, the structural Constitution, and the power of the Court resulted in the Justice taking sometimes idiosyncratic approaches to a given case. As a result, Justice Kennedy's approach to the law placed him in the middle of the Roberts Court, with the Justice not necessarily voting in tandem with the blocs of Justices that commentators have labeled to be "liberal" or "conservative." Justice Kennedy had a significant influence on the Court, sometimes because the substance of his opinions was jurisprudentially significant, as in the areas of free speech and substantive due process, and sometimes by means of providing a fifth vote in closely divided cases.

The following subsections broadly note critical areas of law in which Justice Kennedy was particularly influential on the Roberts Court. The subsections briefly highlight Justice Kennedy's approach to a given area of law, noting the key cases that help explain the Justice's views on a given legal issue. Throughout, the subsections, by noting Justice Kennedy's influence on a particular area of law, signal how the trajectory of the Court's jurisprudence in that area may change when Justice Kennedy retires from active service on the Court.
subsections: section_title: Administrative Law
paragraphs: Justice Kennedy was less influential on administrative law matters than he was in other areas of the law, though he did, at times, express the opinion that courts should carefully police the power of the administrative state based on separation-of-powers concerns. For instance, in a concurring opinion in FCC v. Fox Television Stations, Inc. , he noted the unique "role and position" of administrative agencies in the federal government, and stated that "if agencies were permitted unbridled discretion, their actions might violate important constitutional principles of separation of powers and checks and balances." To address this danger, he argued that courts should carefully apply the various doctrines limiting agencies' power. 

Nonetheless, like other legal issues he approached while on the Court, Justice Kennedy's votes in administrative law cases tended to place him in the middle of the Roberts Court. One of the biggest flashpoints in administrative law is a judge's stance on the doctrines governing judicial deference to agencies' interpretations of statutes, and Chevron deference in particular. Chevron deference counsels that if a statute is ambiguous, courts should defer to certain reasonable agency constructions of the statute. Justice Kennedy's track record under Chevron was relatively mixed overall: he provided the Roberts Court's fifth vote in decisions deferring to an agency's interpretation under Chevron in four cases and provided the fifth vote to reject deference in at least six cases. Moreover, Justice Kennedy authored the Court's 2013 opinion in Decker v. Northwest Environmental Defense Center , relying, over Justice Scalia's dissent, on the Auer doctrine, which affords deference toward an agency's interpretation of its own regulations.

However, in the Court's most recent term, less than a week before Justice Kennedy announced that he would be retiring, Justice Kennedy authored an opinion in which he called for the Court to "reconsider" Chevron . Echoing the separation-of powers concerns he had earlier voiced in opinions such as FCC v. Fox Television Stations, Inc. , Justice Kennedy expressed concern that lower courts had sometimes afforded agency interpretations "reflexive deference," abdicating "the Judiciary's proper role in interpreting federal statutes." He suggested that this abdication violated "constitutional separation-of-powers principles." Accordingly, with a number of Justices arguing for reexaminations of both the Chevron and Auer doctrines, Justice Kennedy's successor could have an important role to play regarding the future of administrative law and how courts scrutinize an agency's legal conclusions. 

section_title: Business Law
paragraphs: Justice Kennedy cast numerous decisive votes in business law cases throughout his tenure on the Roberts Court, including in cases involving antitrust, business taxation, bankruptcy and debt collection, intellectual property, securities, civil tort liability, class action litigation, and employment discrimination. While it may be difficult to observe discernible trends across this diverse group of legal matters, at least two trends in Justice Kennedy's business law jurisprudence during the Roberts Court era are readily apparent. First, in a string of closely divided cases presenting the issue of whether businesses can require plaintiffs to submit their disputes to binding arbitration instead of litigating their disputes in court, Justice Kennedy frequently was part of Court majorities ruling that the claims were arbitrable. Second, Justice Kennedy cast deciding votes in several cases holding that federal law preempted certain state tort causes of action, thereby limiting the circumstances in which plaintiffs could hold businesses liable for conduct that would otherwise violate state law. Justice Kennedy's deciding vote in such cases may have helped solidify the Roberts Court's reputation as being particularly pro-business, prompting the question of whether Justice Kennedy's departure from the Court will change the Roberts Court's approach to business matters. 

section_title: Civil Rights
paragraphs: While serving on the Roberts Court, Justice Kennedy was a critical vote in civil rights cases, addressing both constitutional and statutory matters relating to a broad range of subjects, including voting rights, education, and labor and employment. For instance, in the context of labor and employment law, Justice Kennedy sided with the majority in a number of closely divided rulings adopting a narrower interpretation of Title VII of the Civil Rights Act of 1964 relative to the approach favored by the dissenting Justices on the Court. Justice Kennedy joined the majority opinion in Ledbetter v. Goodyear Tire, which held that a female employee's complaint of pay discrimination was time barred. In a ruling later abrogated by Congress, the majority reasoned that the statutory period for bringing such a claim began with the defendant's original discriminatory pay decision, and thus concluded that each subsequent paycheck that followed did not reset the statute of limitations.

In other contexts, Justice Kennedy took a broader view regarding the statutory and constitutional protections afforded to certain marginalized groups. Most notably, as discussed, Justice Kennedy authored four major opinions that recognized constitutional protections against state-sponsored discrimination based on sexual orientation. Justice Kennedy also wrote the Court's opinion in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc. , in which a bare majority held that plaintiffs could, under the Fair Housing Act, assert disparate impact claims—that is, claims based not on intentional discrimination, but instead on a particular practice that adversely affects a protected group. 

Justice Kennedy was particularly consequential in Roberts Court's decisions concerning race-conscious education policies. For example, Justice Kennedy concurred in the judgment rendered in Parents Involved in Community Schools v. Seattle School District No. 1 , which invalidated school assignment plans that partially relied on race to determine which schools children in the districts could attend. At the same time, however, Justice Kennedy wrote a separate opinion in Parents Involved expressing his view that school districts should nonetheless be "free to devise race-conscious measures" to promote diversity as long as those measures "address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race." The Justice then authored the Court's latest pronouncement on affirmative action two terms ago in Fisher v. University of Texas at Austin , which rejected a white applicant's constitutional challenge to a state university's race-conscious admissions program. 

Given Justice Kennedy's deciding vote on many of the cases mentioned above, his replacement could have an especially influential role in a host of civil rights matters.

section_title: Criminal Law and Procedure
paragraphs: While Justice Kennedy was perhaps less consequential for the Court's jurisprudence in the area of criminal law and procedure than in other areas, he nonetheless provided the deciding vote in a number of cases concerning criminal law and procedure. In the realm of the Fourth Amendment, which provides protection from unreasonable searches and seizures, Justice Kennedy often came down on the side of the government, upholding searches and seizures or otherwise allowing the admission of evidence. In a number of cases, Justice Kennedy suggested that the Court should leave room for local governments to develop their own procedures governing searches, giving local authorities discretion to strike the proper balance between preventing unreasonable searches while still allowing law enforcement officers to conduct effective searches in the interest of public security. The Justice was similarly deferential to the government in the context of Miranda warnings, citing police officers' need for discretion to make "difficult decisions" in the face of ambiguity. In line with his tendency to side with the government in many criminal procedure disputes before the Court, Justice Kennedy was in dissent in a number of the Court's recent rulings taking more expansive views of the Fourth Amendment, the Sixth Amendment's Confrontation Clause, and the Sixth Amendment's right to a jury trial.

While often taking a position favorable to the government in criminal law cases, Justice Kennedy joined or authored Court rulings in several close decisions favorable to criminal defendants' ability to raise right-to-counsel claims. Perhaps most notably, Justice Kennedy authored a pair of 2012 opinions on behalf of a closely divided Court, Missouri v. Frye and Lafler v. Cooper , that held that "as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused," and held that a failure to abide by that rule might undermine even a subsequent prosecution before a jury. 

Justice Kennedy was arguably less often a "swing vote" in criminal law matters, regularly siding with the government, particularly in the area of the Fourth Amendment. However, he was still decisive to the outcome of a number of criminal law cases, and some commentators have argued that his successor will have an important role to play in resolving cases dealing with privacy and the scope of the Fourth Amendment's protections in light of evolving technology. 

section_title: Cruel and Unusual Punishment
paragraphs: Justice Kennedy cast numerous decisive votes in closely divided Eighth Amendment cases, including death penalty cases. In several of those cases, Justice Kennedy authored majority opinions granting relief to petitioners either based on their characteristics or those of the crimes they committed. For instance, in Kennedy v. Louisiana , Justice Kennedy authored the majority opinion ruling that the Eighth Amendment prohibits the death penalty as a punishment for the rape of a child where the crime does not result—and was not intended to result—in the victim's death. Similarly, in Hall v. Florida , Justice Kennedy, building upon the Court's earlier ruling in Atkins v. Virginia , authored an opinion ruling that Florida's death penalty regime created an unconstitutional risk of executing persons with intellectual disabilities. Justice Kennedy also wrote the Court's 5-4 opinion in Roper v. Simmons , which held that the Eighth Amendment forbids executing defendants who were under 18 years of age at the time of their capital crimes, and he joined the 5-4 opinion in Miller v. Alabama , which held that the Eighth Amendment prohibits mandatory life imprisonment for juveniles.

However, Justice Kennedy also cast decisive votes against petitioners in a variety of Eighth Amendment cases, especially in cases presenting broader efforts to challenge the death penalty. For example, in Glossip v. Gross , the Court, in a 5-4 opinion with Justice Kennedy in the majority, rejected the petitioner's claim that Oklahoma's three-drug lethal injection protocol violated the Eighth Amendment by creating an unacceptable risk of severe pain. Likewise, in Kansas v. Marsh , Justice Kennedy joined a 5-4 opinion concluding that Kansas's death penalty regime did not offend the Eighth Amendment. As a result, Justice Kennedy's death penalty jurisprudence placed him squarely in the middle of the Roberts Court, making this area of law a critical one that is likely to be influenced by whoever replaces the Justice. 

section_title: Environmental Law
paragraphs: Justice Kennedy authored or joined several consequential opinions in closely divided environmental law cases during his time on the Roberts Court. For example, Justice Kennedy wrote an influential opinion concurring in the judgment in Rapanos v. United States , which concerned the proper interpretation of the term "waters of the United States" for the purposes of the Clean Water Act. Justice Kennedy's concurrence became the controlling opinion for many lower courts, thereby defining the scope of the federal government's authority to regulate certain bodies of water and wetlands connected to them. Justice Kennedy also joined the Court's 5-4 opinion in Massachusetts v. EPA , a case that some scholars have characterized as "one of the most significant cases in the history of federal environmental litigation." The Massachusetts Court held (1) that the State of Massachusetts had standing to challenge the Environmental Protection Agency's alleged failure to adequately regulate greenhouse gas; and (2) that greenhouse gases fit within the Clean Air Act's definition of "air pollutant" and therefore fell within the EPA's regulatory authority. The Court's ruling in Massachusetts not only expanded the universe of environmental law challenges that federal courts had authority to adjudicate, but it also directly influenced the EPA to establish a new program to regulate greenhouse gases.

Nonetheless, Justice Kennedy also cast several critical votes that did not necessarily align him with those seeking greater legal protections for the environment. For example, Justice Kennedy joined the 5-4 opinion in Summers v. Earth Island Institute , in which the Court ruled that a group of environmental organizations lacked standing to challenge certain federal regulations. Additionally, Justice Kennedy joined the Court's 5-4 opinion in Michigan v. EPA , which held that the Environmental Protection Agency unreasonably deemed cost irrelevant with respect to certain regulations of power plants. As a consequence, like in other areas of law, Justice Kennedy was often at the center of the Court's environmental law decisions, making it likely that his replacement will have significant influence on the future of environmental law. 

section_title: Federalism
paragraphs: Justice Kennedy helped shape the Court's jurisprudence regarding the relationship between the federal government and the states. As noted above, beginning in the Rehnquist Court era, Justice Kennedy frequently authored or joined majority opinions recognizing federalism-based limitations on the federal government's power. That trend continued during the Roberts Court. For instance, Justice Kennedy authored the Court's opinion in Coleman v. Court of Appeals of Maryland , which held that Congress did not validly abrogate the states' sovereign immunity when it enacted a provision of the Family Medical Leave Act. Justice Kennedy likewise joined the Court's 5-4 opinion in Shelby County v. Holder , which held that Section 5 of the federal Voting Rights Act—a formula that determined which states were required "to obtain federal permission before enacting any law related to voting"—impermissibly interfered with "the traditional course of relations between the States and the Federal Government." 

That said, Justice Kennedy nonetheless tended to favor a somewhat broader conception of federal power in a few contexts. In preemption cases, Justice Kennedy commonly (though not invariably) voted to invalidate state statutes or common law doctrines on the grounds that they conflicted with federal law. More broadly, Justice Kennedy's expansive view of the role of the Court in protecting individual liberty resulted in a number of votes to invalidate state laws on the ground that they violated the Constitution. Most obviously, Justice Kennedy's majority opinion in Obergefell v. Hodges "struck down bans on same-sex marriage in 13 states." Justice Kennedy also authored several key opinions articulating federal constitutional standards for when state judges were required to recuse themselves from state court cases. As a consequence, Justice Kennedy's influence on the balance of powers between the federal and state governments was pronounced, making it a key area to consider with regard to how a successor might approach similar issues.

section_title: Freedom of Religion
paragraphs: Justice Kennedy played a pivotal role in cases involving religious liberty interests. Most recently, Justice Kennedy wrote the Court's opinion in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission , in which the Court concluded that a state civil rights commission contravened the Free Exercise Clause when evaluating a baker's claim that selling a wedding cake to a same-sex couple would violate his religious convictions. As discussed above, Masterpiece Cakeshop built on an earlier Justice Kennedy opinion, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah , in which the Court struck down an ordinance forbidding practitioners of Santeria from engaging in animal sacrifice in accordance with the tenets of their religion. Justice Kennedy also joined the Roberts Court's 5-4 opinion in Burwell v. Hobby Lobby Stores, Inc. , which held that regulations promulgated pursuant to the Patient Protection and Affordable Care Act that required employers to provide cost-free contraception to their employees contravened the Religious Freedom Restoration Act. 

Nonetheless, Justice Kennedy did not uniformly side with the interests of religious objectors. For instance, he joined the Court's 5-4 opinion in Christian Legal Society v. Martinez , which held that a public law school did not violate the First Amendment by refusing to officially recognize a Christian student organization because the organization did not comply with the school's policy of allowing all students to join its group. Justice Kennedy further noted in Masterpiece Cakeshop that when reviewing the claims of those who deny goods and services to individuals protected by federal or state public accommodations laws, courts must resolve these disputes "without subjecting gay persons to indignities when they seek goods and services in an open market."

With respect to the Establishment Clause, an issue that has tended to divide the Court over the past half century, Justice Kennedy has tended to adopt a more accommodationist approach, wherein his assessment of whether an Establishment Clause violation occurred stemmed from evidence of religious discrimination or coercion by the government, as opposed to mere endorsement of religion. During the Rehnquist Court era, Justice Kennedy often found himself in dissent in rulings counseling for stricter separation of church and state. Nonetheless, Justice Kennedy authored the Court's opinion in Lee v. Weisman in 1993, concluding that the Establishment Clause prohibited a nonsectarian prayer at a public school graduation ceremony because of the coercive effects the prayer would have on nonadherents. 

With Justice O'Connor's retirement from the Court in 2005, Justice Kennedy became the Court's median vote on Establishment Clause issues. While the Roberts Court has entertained few appeals on Establishment Clause issues, in its most notable ruling, Town of Greece, New York v. Galloway, Justice Kennedy, writing for a plurality of the Court, embraced a most accommodationist view of the First Amendment to conclude that a municipality did not violate the Constitution by opening its meetings with a prayer. Given Justice Kennedy's critical role on religious freedom matters and a spate of disputes over religious liberty continuing to arise in the lower courts, Justice Kennedy's successor could be quite influential in how the Court resolves such disputes in the future. 

section_title: Freedom of Speech
paragraphs: Throughout his tenure on the Roberts Court, Justice Kennedy authored or joined numerous opinions invoking the First Amendment's Free Speech Clause to strike down state and federal laws. In particular, Justice Kennedy frequently voted to invalidate statutes that, in his view, unconstitutionally restricted political participation. For instance, Justice Kennedy authored the 5-4 majority opinion in Citizens United v. FEC , which held that a federal campaign finance law banning corporate independent expenditures for electioneering communications violated the First Amendment. Justice Kennedy also joined the Court's 5-4 opinion in McCutcheon v. FEC , which invoked the First Amendment to invalidate a federal statute that imposed aggregate limits on political contributions.

Justice Kennedy's broad conception of the Free Speech Clause carried over into other contexts as well. For one, Justice Kennedy cast decisive votes in several First Amendment cases involving labor organizations. Most significantly, Justice Kennedy joined the Court's recent 5-4 opinion in Janus v. American Federation of State, County, & Municipal Employees, Council 31 , which held that a state's extraction of agency fees from nonconsenting public sector employees violated the First Amendment. In addition, Justice Kennedy regularly voted to invalidate restrictions on commercial or professional speech. For example, Justice Kennedy's majority opinion in Sorrell v. IMS Health Inc. , struck down a state statute restricting speech in aid of pharmaceutical marketing.

Nevertheless, Justice Kennedy believed that speech could at times be subject to government restraint. Justice Kennedy's 5-4 majority opinion in Garcetti v. Ceballos , for instance, concluded that statements made by government employees pursuant to their official duties were not protected by the First Amendment. Justice Kennedy also joined the Court's 5-4 opinion in Morse v. Frederick , which held that a school principal did not violate a student's right to free speech by confiscating a banner that the student displayed at an off-campus, school-approved activity. Additionally, Justice Kennedy joined the majority opinion in Holder v. Humanitarian Law Project , in which the Court concluded that a federal law making it a crime to "knowingly provid[e] material support or resources to a foreign terrorist organization," including "training" or "expert advice and assistance," did not violate certain plaintiffs' free speech rights. With the prospect of free speech issues continuing to dominate the Roberts Court's docket, it remains to be seen whether Justice Kennedy's free speech jurisprudence will continue to be the prevailing view on the High Court.

section_title: National Security
paragraphs: Justice Kennedy authored or joined a number of majority opinions that closely divided the Court on matters related to national security. These opinions have tended to defer to the authority of the political branches on national security matters. For example, in Ziglar v. Abbasi , writing the opinion of the Court, Justice Kennedy held that lower courts had erred by allowing certain detained foreign nationals to sue the government under an implied cause of action. He wrote that "[n]ational-security policy is the prerogative of the Congress and President," cautioning that "judicial inquiry into the national-security realm" raises separation-of-powers concerns. 

Justice Kennedy similarly emphasized national security concerns in several of the Court's rulings with respect to immigration matters. In at least two determinative opinions, Justice Kennedy accorded significant deference to immigration decisions of the political branches because they implicated foreign affairs and national security. Most recently, in Trump v. Hawaii , Justice Kennedy joined an opinion reaffirming the deference afforded to the political branches on immigration when upholding a presidential proclamation restricting the entry of foreign nationals from specified countries. 

Nonetheless, Justice Kennedy has also provided the deciding vote in cases recognizing limitations on the authority of the President over matters concerning national security. For example, in Hamdan v. Rumsfeld , he joined the Court in an opinion concluding that a presidential order creating a military commission to try enemy belligerents for specified categories of offenses violated the governing federal statutes. 

Perhaps most notably, Justice Kennedy authored the majority opinion in Boumediene v. Bush , in which the Court held that foreign nationals "designated as enemy combatants and detained at the United States Naval Station at Guantanamo Bay, Cuba" were entitled to invoke the constitutional "privilege of habeas corpus." While Justice Kennedy's majority opinion recognized the President's "substantial authority to apprehend and detain those who pose a real danger to our security," the Court ultimately concluded that this power would be "vindicated, not eroded," by extending the writ of habeas corpus. He wrote that "few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person." Given how closely divided the Court has been in cases like Trump and Boumediene , a critical question going forward is how the Roberts Court will approach national security matters without Justice Kennedy.

section_title: Second Amendment
paragraphs: Justice Kennedy also provided key deciding votes in the few but significant cases the Roberts Court heard on the Second Amendment. Most notably, Justice Kennedy joined the five-Justice majority that concluded in District of Columbia v. Heller that the Second Amendment protected an individual (as opposed to collective) right to keep and bear arms. Two years later, he joined a majority of the Court to hold in McDonald v. City of Chicago that the Second Amendment governed state and local governments through the Fourteenth Amendment. However, Justice Kennedy declined to join other Justices who called for the Supreme Court to consider Second Amendment challenges to laws imposing waiting periods for purchasing firearms or restricting the right to carry firearms in public. Given the close divide on the Court relating to the regulation of firearms, Justice Kennedy's successor could have a notable effect on how the Second Amendment and the Heller ruling are interpreted going forward.

section_title: Separation of Powers
paragraphs: As discussed, since his appointment to the Court, Justice Kennedy has frequently stressed the importance of the Constitution's separation of the legislative, executive, and judicial powers, often casting decisive votes in the Court's separation-of-powers cases. For example, in a 2011 decision, Justice Kennedy emphasized the historical and practical importance of constitutional limitations on the power of the judicial branch. Justice Kennedy provided the fifth vote in a number of Roberts Court decisions interpreting Article III of the Constitution, delineating—and frequently limiting—the authority of the courts to adjudicate disputes. Justice Kennedy has authored or joined opinions limiting the power of the legislative and executive branches, as well. For example, as discussed above, Justice Kennedy has called for the judicial branch to carefully police the administrative state, while also recognizing that the judicial branch should tread carefully in realms committed to the political branches, such as national security. 

In so doing, Justice Kennedy has not necessarily adopted a uniform approach toward separation-of-power matters. He has, at times, authored or joined opinions taking a more formalist approach toward analyzing whether a particular action violates the separation of powers, and supported invalidating some acts that transgress upon the separation of powers regardless of the severity of the violation. In other cases, however, Justice Kennedy has embraced a more functionalist approach to such claims, one that investigates the nature of the challenged action and the extent to which that action violates separation-of-powers principles before concluding that the action is unlawful. His willingness to employ both formalist and functionalist approaches to separation-of-powers issues was illustrated by a concurring opinion he authored during his first term on the Court, where he suggested that, at least in the context of intrusions on executive authority, the approach the Court takes in separation-of-powers disputes should depend upon the particulars of the dispute and on whether the Constitution explicitly assigns a given power exclusively to the President. Justice Kennedy's views on the separation of powers placed him in the middle of the Roberts Court in cases concerning the allocation of powers among the three branches of the federal government, suggesting that Justice Kennedy's successor may be quite influential on the future direction of the Court's approach in such cases.

section_title: Substantive Due Process and Fundamental Rights
paragraphs: Justice Kennedy played an especially important role in shaping the Supreme Court's substantive due process jurisprudence. The substantive due process doctrine holds that the Constitution's Due Process Clauses protect certain unenumerated "fundamental rights and liberties which are . . . 'deeply rooted in this Nation's history and tradition,'" such as the right to marry and the right to privacy. On many occasions throughout his tenure on the Court, Justice Kennedy authored or joined opinions invoking the substantive due process doctrine to invalidate a variety of federal and state laws—most consequentially on the subjects of abortion and sexual orientation. 

As noted above, Justice Kennedy is perhaps best known for authoring many of the Supreme Court's landmark opinions on issues pertaining to sexual orientation, several of which were based on the substantive due process doctrine. Justice Kennedy's opinion for the Court in Lawrence v. Texas , for example, invoked substantive due process and the right to privacy to invalidate a state statute criminalizing private sexual conduct between persons of the same sex. Similarly, Justice Kennedy's opinion in Obergefell v. Hodges , which held that prohibitions on same-sex marriage were unconstitutional, was likewise based in part on the substantive due process doctrine and the fundamental right to marriage. 

Nonetheless, Justice Kennedy did find limits on the rights recognized in cases like Lawrence and Obergefell, especially when those rights clashed with other constitutional rights. For example, Justice Kennedy wrote the majority opinion in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission , in which the Court ruled in favor of a baker who refused to create a cake for a same-sex wedding reception, concluding that in justifying its decision to enforce state antidiscrimination laws against the baker, the State of Colorado had exhibited impermissible "hostility" toward the baker's religious beliefs. And Justice Kennedy likewise voted with the majority in Boy Scouts of America v. Dale , in which the Court refused to force the Boy Scouts to readmit a scoutmaster it had previously expelled because of his sexual orientation.

Justice Kennedy also played an important role in shaping the Supreme Court's substantive due process jurisprudence in the abortion context. Not only was Justice Kennedy one of the coauthors of the joint plurality opinion in Planned Parenthood v. Casey during the Rehnquist Court era, but he also continued to cast decisive votes in closely divided Roberts Court-era abortion cases. In some of those cases, Justice Kennedy voted to uphold abortion restrictions. Most notably, Justice Kennedy wrote the Court's 5-4 opinion in Gonzales v. Carhart , which upheld the constitutionality of the federal Partial Birth Abortion Ban Act. In other cases, by contrast, Justice Kennedy voted to invalidate abortion laws, including Whole Woman's Health v. Hellerstedt , in which Justice Kennedy joined a five-Justice majority opinion holding that a Texas law unconstitutionally imposed an undue burden on women's right to seek previability abortions. 

Outside the contexts of challenges to statutes restricting sexual and reproductive autonomy, however, Justice Kennedy's approach to substantive due process was more circumscribed. For instance, Justice Kennedy joined the Court's refusal to recognize a constitutional right to physician-assisted suicide in Washington v. Glucksberg , evidently agreeing with the Court's conclusion that substantive due process protects only those rights that are "deeply rooted in [the nation's] history and traditions." Yet, Justice Kennedy's subsequent opinion in Obergefell rejected Glucksberg 's admonition that the substantive due process doctrine only protects rights with a long historical pedigree, and instead concluded that "history and tradition . . . do not set [the] outer boundaries" of the unenumerated rights guaranteed by the Due Process Clause. Going forward, Justice Kennedy's role in the Court's abortion and sexual orientation jurisprudence, which in large part stems from his views about the substantive component of the Due Process Clauses, will likely loom large as the Senate considers the Justice's successor.

section_title: The Takings Clause and Eminent Domain
paragraphs: Like other areas of law, Justice Kennedy cast several important votes in eminent domain cases—that is, cases involving whether and when federal and state governments may take private property for public use. In several eminent domain cases Justice Kennedy sided with the government. Perhaps most significantly, Justice Kennedy joined the Court's opinion for five Justices in Kelo v. City of New London, Connecticut , which upheld a city's use of its eminent domain power to implement an economic development plan, even though the plan would benefit private parties. In other cases, by contrast, Justice Kennedy sided with the property owner. For example, Justice Kennedy joined the majority opinion in Horne v. Department of Agriculture , in which the Court ruled that (1) the Constitution's Takings Clause applies to real property and personal property alike; and (2) the federal government had violated the Takings Clause by requiring raisin growers to relinquish their crops without paying them just compensation. With Justice Kennedy's retirement, legal commentators have speculated what the Justice's successor could mean for the future of property rights and the Court's view of the Takings Clause.

section_title: Conclusion
paragraphs: Justice Byron White noted that "every time a new justice comes to the Supreme Court, it's a different court." That adage could be particularly true when the departing Justice is considered a "swing vote." Several Justices considered "swing votes" who left the Court in recent decades were replaced, respectively, by Justices who altered the trajectory of the Court's jurisprudence. Justice Lewis Powell's retirement in 1987 and Justice Kennedy's arrival on the Court the next year witnessed noticeable changes in the Court's jurisprudence, including with respect to abortion, the death penalty, and the rights of same-sex couples. Justice Sandra Day O'Connor's departure had similar consequences on the Court's jurisprudence. Not only did Justice O'Connor's replacement, Justice Alito, take a markedly different approach than his predecessor on a number of legal issues, but her departure also cemented Justice Kennedy's position as the critical vote in closely divided cases decided by the Court. Accordingly, because of the "difference one Justice [can] make" on the Court, Justice Kennedy's jurisprudence and the areas in which he was a deciding vote may be relevant considerations as the Senate determines whether to confirm the President's choice to replace the soon-to-be-retired Justice. 
subsections: section_title: Appendix. Justice Kennedy As a "Swing" Vote on the Roberts Court: Select Data
paragraphs: Justice Kennedy cast the deciding vote in many consequential Supreme Court cases, particularly during the Roberts Court era beginning with the October 2005 Supreme Court term. This section includes several tables relating to 186 cases where Justice Kennedy cast a deciding vote from the date of Chief Justice Roberts's elevation to the Court to the date of Justice Kennedy's retirement. For purposes of the tables, Justice Kennedy is considered to have cast a "deciding vote" any time he joined a majority or plurality opinion or concurred in the result of a case where the Justices were divided either 5-4, 5-3, 4-3, or 4-2 on one or more issues. Per curiam opinions are included only if they resolved an appeal pending before the Court. 

 Table A-1 identifies cases primarily centering on questions of constitutional interpretation in which Justice Kennedy cast a deciding vote. Table A-2 includes cases mainly addressing questions of statutory interpretation—including the interpretation of administrative regulations, procedural rules, and other legal rules promulgated in accordance with statutory authority—in which Justice Kennedy cast a deciding vote. Table A-3 compiles closely divided cases that do not fall neatly into either of the prior tables (e.g., cases centering on issues of federal common law or principles of equity). Table A-1 , Table A-2 , and Table A-3 also identify (1) the statute, constitutional provision, or other source of law primarily at issue in the case; and (2) Justice Kennedy's position on the key issue in the case. The cases in these three tables are listed alphabetically by year, and are categorized under the following subject areas:

Abortion Law, Administrative Law, Business Law (including issues arising in antitrust, banking, bankruptcy and debt collection, consumer law, contract law, intellectual property law, and securities law), Civil Rights Law (including issues arising under the Fourteenth Amendment and civil actions brought under 42 U.S.C. §1983), Civil Liability (including torts), Communications Law, Criminal Law and Procedure, Education Law, Election Law, Environmental Law, Family Law, Food and Drug Law, Freedom of Association, Freedom of Religion, Freedom of Speech, Habeas Corpus, Immigration Law, Indian Law, International Law, Judicial System (including issues involving federal and state courts generally, civil procedure, standing and justiciability, class actions, equitable remedies, arbitration, and judicial ethics), Labor and Employment Law, Maritime Law, Military Law, National Security, Privacy Law, Public Benefits, Second Amendment, Separation of Powers, Takings, Tax Law, and Territorial Law.

For purposes of brevity, no more than two subject areas are identified as relevant to a particular case. While these categorizations are intended to provide a helpful guide to readers in identifying the subject matters of decisions, they do not necessarily reflect the full range of legal issues a judicial opinion may involve.

 Table A-1 , Table A-2 , and Table A-3 also identify the composition of Justices hearing a listed case, dividing the members of the Court who participated in the case into two categories: (1) Justices making up the majority or controlling plurality, including those who concurred with the Court's judgment; and (2) those Justices who dissented in whole or in part from the key ruling of the case. The author of the primary opinion is designated with an asterisk (*). Authors of concurring and dissenting opinions are identified with plus signs (+). Justice Kennedy's name has been capitalized throughout for the reader's convenience. For ease of reference, Justices are listed in alphabetical order, rather than order of seniority. Table A-4 identifies how frequently Justice Kennedy voted with specific lineups of Justices in the cases in which he cast a decisive vote.


Question-summary annotations: questions: question: What views did Justice Kennedy not subscribe to in entirety?
answer: Unlike several other Justices on the Court, Justice Kennedy did not necessarily subscribe to a particular judicial philosophy, such as originalism or textualism. Instead, Justice Kennedy's judicial approach seemed informed by a host of related principles.
child_questions: question: What opinions did Justice Kennedy hold on personal freedom?
answer: First, Justice Kennedy's views on the law were often grounded in concerns for personal liberty, particularly freedom from government interference with thought, belief, expression, and certain intimate conduct. His emphasis on liberty manifested itself in a range of opinions he wrote or joined during his tenure on the Court, including on issues related to free speech, religious freedom, and government policies concerning same-sex relationships.

question: Why was Justice Kennedy a supporter of separation of powers?
answer: Second, the structural protections of the Constitution—i.e., restraints imposed on the federal government and its respective branches by the doctrines of federalism and separation of powers—also animated Justice Kennedy's jurisprudence. For Justice Kennedy, separation of powers was a "defense against tyranny," and he authored or joined a number of Court opinions that invalidated on separation-of-powers grounds intrusions on the executive, legislative, or judicial functions. Likewise, during the Rehnquist Court and Roberts Court eras, Justice Kennedy joined several majority opinions that recognized federalism-based limitations on the enumerated power of the federal government, established external limitations on Congress's legislative powers over the states, and reaffirmed protections for state sovereignty.

question: What beliefs did Justice Kennedy hold about the importance of the Court in national affairs?
answer: Third, Justice Kennedy's jurisprudence was undergirded by his view that the Court often has a robust role to play in resolving issues of national importance. With Justice Kennedy casting critical votes, over the last 30 years the Court has reasserted its role in a number of areas of law in which it was previously deferential to the judgment of the political branches.

questions: question: Why is Justice Kennedy's role in Court as a swing vote so important?
answer: Given Justice Kennedy's outsized role on the Roberts Court, whoever succeeds him could have an important influence on any number of areas of law. In particular, Justice Kennedy's votes were critical to the outcome of numerous Court decisions on matters relating to abortion, business law, civil rights, the death penalty, the regulation of elections, eminent domain, the environment, federalism, the First Amendment, gun rights, immigration, national security, oversight of the administrative state, and separation of powers.

question: What is Justice Kennedy's role in appointing his replacement?
answer: Accordingly, Justice Kennedy's jurisprudence in these areas—particularly in cases where he was the deciding vote—may be especially relevant to the Senate as it determines whether to approve the President's nominee to replace the soon-to-be-retired Justice.

questions: question: What nomination did President Trump put forth as Justice Kennedy's replacement?
answer: On July 9, 2018, President Trump announced the nomination of Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) to– fill the impending vacancy on the Supreme Court caused by Justice Kennedy's scheduled retirement.

question: Why are the CRS reports on Judge Kavanaugh's jurisprudence not yet released?
answer: CRS reports analyzing Judge Kavanaugh's jurisprudence on particular areas of the law, as well as a tabular listing of lower-court decisions in which he authored opinions, are in preparation.