Kennedy Calls It Quits: Longtime Swing Justice Hands Trump The Biggest Gift Of His Presidency

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Kevin Daley Supreme Court correspondent
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Justice Anthony Kennedy announced his retirement Wednesday, precipitating a generational political fight over the future of the U.S. Supreme Court.

Kennedy’s departure was announced Wednesday afternoon, several hours after the justices released the final decisions of the current term.

“For a member of the legal profession it is the highest honor to serve on this Court,” he wrote in a letter to President Donald Trump. “Please permit me by this letter to express my profound gratitude for having had the privilege to seek in each case how best to know, interpret, and defend the Constitution.”

Few justices loom as large as Anthony Kennedy in the history of the high court. As the bench became an object of political competition and the tribunal itself began to reflect the country’s ideological entrenchment, Kennedy led narrow majorities to landmark decisions on gay rights, abortion, the First Amendment, and Guantanamo Bay detainees.

Dignity and civility occupied the center of his jurisprudence, values he saw emanating from the deepest recesses of the Constitution which provide a single unity to its divergent threads. The justice revived these principles in Tuesday’s travel ban case, where he tacitly admonished the Trump administration in a short concurring opinion many saw as a valedictory message.

“It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs,” he wrote. “An anxious world must know that our government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.” (RELATED: Supremes Uphold Travel Ban, Dealing Victory To Trump)

The verbosity and drama which characterize his writing drew virulent critics, who say his rhetorical flourishes confuse important areas of law. The late Justice Antonin Scalia famously dragged Kennedy for descending into “the mystical aphorisms of the fortune cookie,” in Obergefell v. Hodges, the Kennedy decision which legalized same-sex marriage. In that vein, Chief Justice John Roberts called a section of Kennedy’s Obergefell opinion “difficult to follow” in his own dissent in that case.

Other observers say his sweeping prose was typical of a justice supremely confident in his own abilities — yet prone to long bouts of crippling indecision.

Whatever his occasional apostasies, Kennedy was reliably conservative in certain areas. He authored the majority opinion in Citizens United v. FEC — widely reviled by liberals — and joined some of the most contentious conservative victories of the Roberts Court, including D.C. v. Heller and Shelby County v. Holder. Heller found the Second Amendment protects the right to bear firearms in the home for self defense, while Shelby County struck down a key provision of the Voting Rights Act. He furnished the requisite fifth vote in both cases.

Kennedy, a Ronald Reagan appointee, has served on the high court for 30 years. He was selected to succeed Justice Lewis Powell after Reagan’s first two nominees — Judges Robert Bork and Douglas Ginsburg — met chilly receptions in Washington. Democrats styled Bork an arch-reactionary and rejected his nomination in a humiliating floor vote, while Ginsburg withdrew after accounts of his past marijuana use appeared in the press.

Kennedy’s retirement will prompt the most ferocious confirmation battle of recent memory, as his departure under a Republican president places the right’s long-eluded Supreme Court majority within reach.

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