Justice Kennedy Retires From Supreme Court, Setting Stage for Likely Confirmation Battle

Author: David B. Weisenfeld, XpertHR Legal Editor

June 27, 2018

Justice Anthony Kennedy, the US Supreme Court's frequent swing voter on a host of key issues, announced his retirement on the final day of the Court's term. Justice Kennedy's 31-year tenure made him the longest active -serving member of the Court, but more important were his deciding votes in cases involving same-sex marriage, affirmative action, labor law and other key areas.

Justice Kennedy famously authored the Court's 2015 decision in Obergefell v. Hodges, in which he said, "The marriage laws at issue here harm and humiliate the children of same-sex couples." He also cited the 1967 case of Loving v. Virginia, which struck down interracial marriage bans, in noting that the institution of marriage has evolved over time.

On health care, Justice Kennedy sided with Chief Justice Roberts and the Court's four liberal justices in a landmark 6-3 ruling in 2012 that allowed the federal government to provide nationwide tax subsidies to help Americans buy health insurance under the Affordable Care Act (ACA).

But two years later, he provided the pivotal vote in the Hobby Lobby ruling, in which the Court sided with the owners of closely held for-profit corporations with religious objections to birth control over the ACA's contraceptive coverage mandate. He also provided decisive votes in cases that weakened organized labor.

Senate Majority Leader Mitch McConnell has vowed that the Senate will confirm Justice Kennedy's successor this fall prior to the November election. Two years ago, McConnell blocked President Obama's Supreme Court nomination of Merrick Garland from coming to a vote, citing the upcoming election.

Speaking with XpertHR, Proskauer Rose attorney Anthony Oncidi, who heads the labor and employment group at the firm's Los Angeles office, said, "Assuming the president nominates someone in the Gorsuch mold, there will be a durable conservative majority of votes for the foreseeable future. This will have a transformative effect in every aspect of the Court's business, including especially in the area of labor and employment."

Justice Kennedy's last official day on the Court will be July 31. In remarks to reporters, President Trump said Kennedy has "been a great justice Justice of the Supreme Court" and also noted that the effort to replace him will begin immediately.