Kennedy, 81, has provided crucial swing votes on progressive issues and retirement gives Trump an opportunity to shift the court right

This article is more than 2 years old

This article is more than 2 years old

Supreme court justice Anthony Kennedy, who has provided crucial swing votes in cases governing core progressive issues including abortion rights and same-sex marriage, announced his retirement on Wednesday in a decision likely to send shockwaves into every corner of US civic life.

The announcement set up a titanic battle between Republicans allied with Donald Trump, who wish to replace Kennedy with a more reliably conservative justice, and Democrats who fear that a new Trump appointment could give the court a decisive conservative bent for generations.

Republican control of Congress, however, means Trump has a good chance of putting forward a nominee who will be confirmed.

Q&A Who could replace Anthony Kennedy in the supreme court? Show Hide Trump has already made public a list of 25 judges he will consider nominating to replace justice Anthony Kennedy when he retires. These are the names at the top of the list. Brett Kavanaugh, a 53-year-old of the US court of appeals for the DC circuit is a solid front runner. Thomas Hardiman, 52, was a runner-up for Neil Gorsuch’s supreme court seat in 2017 to replace the late Antonin Scalia before Trump made his pick. Amy Coney Barrett, 46, was nominated to the US court of appeals for the seventh circuit in May 2017 by Donald Trump.

Amul Thapar, 49, was also appointed by Trump last year and sits on the sixth circuit court of appeals in Kentucky. William Pryor, 56, was also on Trump’s short-shortlist to replace Antonin Scalia but was beaten to the bench by Neil Gorsuch. Don Willett, 50, is one of the wilder cards but wouldn’t Trump warm to an outlier and a judge known chiefly outside Texas for his flamboyant use of Twitter? By Joanna Walters. Read more.

Kennedy’s retirement takes effect on 31 July, after which Trump will be free to put forward a nominee to replace him. Trump told reporters on Wednesday that he would make his next selection from a White House list of possible Trump nominees.

“Justice Anthony – you know who I’m talking about, Justice Kennedy will be retiring,” Trump said in remarks at the White House. “And he is a man that I’ve known for a long time and a man that I’ve respected for a long time.

“We will begin our search for a new justice of the United States supreme court that will begin immediately, and hopefully we’re going to pick somebody that will be as outstanding.”

Later, at a rally in North Dakota, Trump drew rapturous applause when he mentioned Kennedy’s retirement and predicted that the supreme court vacancy would be one of the most consequential issues Americans will consider when voting this November.

“Justice Kennedy’s retirement makes the issue of Senate control one of the most important issues of our time,” Trump told the crowd in Fargo. “We have to hold the House and maybe even increase it and I think we’ll be able to do it.”



He added: “The travel ban ruling underscores just how critical it is to confirm judges who will support our constitution.”



Trump took a moment during his meandering hour-long remarks to praise Kennedy for his years of service – and then appeared to take credit for the justice’s decision to retire.

“I’m very honored that he chose to do it during my term in office – because he felt confident in me to make the right choice and carry on his great legacy,” Trump said, noting that he hoped to nominate someone who would serve for “40 or 45 years”.

Senate majority leader Mitch McConnell, whose 2016 strategy of refusing to act for eight months on Barack Obama’s nomination to fill a court seat set up Trump’s nomination of Neil Gorsuch, said that the Senate would hold a vote on Kennedy’s successor “this fall” – meaning before November’s midterm elections that could see a changeover in senate control.



“It has been the greatest honor and privilege to serve our nation in the federal judiciary for 43 years, 30 of those years on the supreme court,” Kennedy, 81, said in a statement, describing a “deep desire” to spend more time with his family. He was sworn in on 18 February 1988.

“This is the most important supreme court vacancy in this country in a generation,” said minority leader Chuck Schumer in remarks on the senate floor. “The fate of our health care system, reproductive rights for women, and countless other protections” are at stake.

Play Video 0:46 Trump: search underway for Kennedy replacement – video

The retirement could portend a showdown on Roe v Wade, the 1973 decision protecting abortion rights, said Renato Mariotti, a former federal prosecutor.

“Trump has consistently signaled his intention to select very conservative jurists, and the Senate eliminated the filibuster for supreme court nominees,” Mariotti told the Guardian. “So unless the Democrats retake the Senate, which is unlikely, Trump will be able to select a justice who would vote to overturn Roe.”

For years, Kennedy sat at the ideological center of the court, occasionally siding with liberal justices while ruling with the conservative majority in key decisions on campaign finance, warrantless wiretapping and an assault on the Voting Rights Act.

Apart from abortion rights, a rightward shift on the court could endanger affirmative action programs, activists said, while blocking progress on a death penalty ban and other issues.

Neal Katyal, who argued the case against Trump’s travel ban, warned on Twitter that the court risked parting ways with the public.



“This Supreme Court has diverged from the heart of America,” Katyal tweeted. He warned that the Senate, which is controlled by Republicans and can approve the next nominee on a majority vote, “must carefully scrutinize everything about a nominee’s positions,” particularly given the treatment of Merrick Garland, whose nomination Republicans refused to consider in a gamble that paid off when Trump won the presidential election.

Trump's travel ban: what does the supreme court ruling mean? Read more

Kennedy, who will turn 82 next month, was nominated by Ronald Reagan and is the longest-serving of the court’s nine justices. Ruth Bader Ginsburg, 85, is older, but she has said she is not considering retirement.

Josh Blackman, a law professor who was in the court on Wednesday, noted that Kennedy’s wife, Mary Kennedy, had attended the session, along with children and grandchildren.

One of Trump’s most popular actions with his political base so far was his nomination last year of the conservative justice Gorsuch, who was once Kennedy’s clerk. Trump has promised to tap an equally conservative judge as his second pick, given the chance.

Each of the previous four presidents has filled two supreme court vacancies, including George HW Bush, who served only one term.

In one of his final opinions written for the court, a concurrence upholding Trump’s travel ban targeting several Muslim-majority countries, Kennedy issued a warning seemingly aimed at Trump about leaders heeding the constitution.

“The first amendment prohibits the establishment of religion and promises the free exercise of religion,” Kennedy wrote. “From these safeguards, and from the guarantee of freedom of speech, it follows there is freedom of belief and expression.

“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. 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.”

