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Anthony Kennedy’s decision to retire from the Supreme Court after more than three decades has touched off a frenzy that will consume Washington’s attention for the foreseeable future. Kennedy’s successor on the court will likely define the law for decades to come. At The Atlantic, our writers have spent the last several days analyzing the consequences of Kennedy’s departure. In this issue, we’ll tell you what they’ve learned. Take a look, and tell us what other questions you’d like answered.

—Matt Peterson


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The Last Centrist Justice

Kennedy was the last of the Supreme Court’s compromise candidates, nominated in an era when justices needed to pass muster with a bipartisan majority of Senators to be confirmed. After President Reagan’s first two nominees to the court failed, he decided he needed to put forth a moderate. The result was Kennedy, a libertarian who supported rights to abortion and to same-sex marriage, but who also believed that corporations are people and that the right to bear arms is an individual one. The process of appointing and confirming a justice to the Supreme Court now follows sharply defined partisan lines, however, so the chances of another Kennedy being confirmed to the court are virtually nil.

Abortion Rights

  • Kennedy’s jurisprudence mirrored the country’s views on abortion. Americans by and large prefer for abortion to be legal but regulated. That dichotomy, in broad strokes, is what Kennedy’s votes on the court reinforced. With Kennedy gone, there is tremendous pressure from pro-life conservatives to quickly overturn Roe v. Wade, but doing so would immediately upend American politics. [Read more from Mary Ziegler]

  • Abortion rights won’t flip like a national lightswitch. CNN’s Jeffrey Toobin may be right that “Roe v. Wade is doomed.” But if so, that means there wouldn’t be a federal right to abortions. On the state level, the laws would continue to bifurcate in ways that closely match the political divide. If you live in a red state, it’s already increasingly hard to get an abortion, particularly if you’re poor and can’t travel easily. Many of those states might make abortions illegal instead of just difficult, but the procedure would remain available for those with means. [Watch Jeffrey Rosen]

  • Conservatives are unlikely to accept ambiguity on abortion. Republicans led a bruising campaign to ensure Merrick Garland, President Obama’s final nominee, wasn’t seated. The fight this time is even higher-stakes. Advocacy groups on the right are preparing to throw more resources at the hearing process. And on the left, advocates are already envisioning a world without a federal right to abortion. [More from Emma Green]

Civil Rights and Beyond

  • The field is now clear for a conservative approach to criminal justice. The newer conservative justices, including Chief Justice John Roberts, have repeatedly ruled in favor of a more punitive criminal justice system. Kennedy balanced out the views of his conservative colleagues on corrections-systems reform, criticized Congress for failing to pass sentencing-reform laws, and sided with liberal justices on matters such as the death penalty and prison reform. The next justice will likely create a conservative majority on these issues. [Read Vann R. Newkirk II]

  • Partisan gerrymanders are likely to continue. The plaintiffs in one of Kennedy’s last cases, Gill v. Whitford, alleged that GOP-drawn legislative maps in Wisconsin were a form of partisan gerrymandering. The court declined to issue a substantive ruling this term, but until Kennedy’s retirement, voting-rights activists remained hopeful that the court would soon bring an end to partisan gerrymandering. That path is now closed.

  • His departure makes years of legal strategizing moot. Lawyers who argued before the Supreme Court often designed their arguments to appeal to Kennedy’s reasoning. Now that strategy—and many others like it—have no constituency on the court. [Read Robinson Meyer]

Divided Politics

  • The polarization of the court started long before Kennedy announced his retirement. What’s changed is the willingness by the other branches of government—especially the Senate under Majority Leader Mitch McConnell—to undertake a no-holds-barred campaign for partisan control of the court. That kind of strategy hasn’t been seen since the days of Franklin Roosevelt’s court-packing scheme. [Read Garrett Epps]

  • The breakdown in norms around the court is partially a consequence of the court’s extraordinary—and increasing—power. Over the decades, the court has taken on vast authority over major aspects of American life. The public may hold on to an image of a court divorced from politics, but that perception is long out of date. Both parties would go to the mats for a chance to shift the court’s decisions behind them. At the moment, there’s little Democrats can do to fight back. Some liberal activists have already called for a return to Roosevelt-esque court-packing if the party does return to power. But reducing the partisan stakes of Supreme Court appointments may require big adjustments, such as term limits for justices. [Read Bob Bauer]


What happens next: Like a chess game, the political players have mapped out their moves far in advance. President Trump will likely announce a nominee from his well-publicized shortlist next week. There’s a reason Trump called the Gorsuch nomination his best moment; sticking to the plan made his base very happy. Senate Democrats are already linking the decision to their base’s biggest concerns, particularly health care and the Russia investigation. Mitch McConnell says he’ll have a nominee confirmed this fall. And given how the last nomination process went, it may be wise to take McConnell at his word.  


What we’re reading on SCOTUS

  • The Washington Post created a chart of the issues that Kennedy voted for and against.

  • Slate asks why, in his last term, Kennedy leaned into Trumpism.

  • BuzzFeed explains how Kennedy’s departure may help Republicans keep or expand their Senate majority.

  • Reason argues that Chief Justice Roberts will become the new median justice of the court.

  • Politico discusses the strategy of nominating a female justice as Roe v. Wade appears to hang in balance.

  • The Guardian depicts the hurdles that Trump’s nominee must clear to be confirmed.


Today’s Wrap-Up

  • Today’s question: What aspects of the Kennedy story haven’t been covered yet? What are your lingering questions? Discuss them here.

  • What’s coming: You won’t see an email from us on Wednesday because of the Independence Day holiday, but we’ll be active on the forums. See you there.

  • Your feedback: Hit the survey button to let us know how we’re doing.

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