Anthony Kennedy’s 'former clerks' are obliterating his Supreme Court legacy: analysis

03 September 2023

After United States Supreme Court Associate Justice Anthony Kennedy's July 31st, 2018 retirement following three decades on the bench, then-District of Columbia Circuit Court of Appeals Judge Brett Kavanaugh would become the second of two ex-Kennedy clerks to join the High Court upon being nomination by former President Donald Trump and confirmed by the Senate as Kennedy's replacement. The other, Associate Justice Neil Gorsuch, was chosen by Trump to fill the seat left vacant in 2016 by the sudden death of Associate Justice Antonin Scalia. Trump went on to add a third Associate Justice — Amy Coney Barrett — in 2020, resulting in a 6-3 right-wing supermajority that set its sights on toppling long-standing precedents, of which many Kennedy had a crucial role in establishing.

On Sunday, The Washington Post's Robert Barnes explored how the men who earned their mettle under Kennedy became the jurists who would dismantle his legacy.

Kennedy "was almost sure to be found in the majorities that prevailed on the nation's most monumental concerns," Barnes recalled. "But on a Court that has moved decidedly to the right, Kennedy's mark is fading fast — and is already erased in some areas" thanks to Kavanaugh and Gorsuch. Like Barnes, seasoned legal professionals have noticed the pattern.

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Georgetown University Law Center environmental law expert Lisa Heinzerling, for instance, told Barnes that it "feels more like a hundred" years since Kennedy quit, observing that Kennedy's perspectives "are nowhere to be found on this Court anymore."

University of Michigan law professor and ex-Kennedy clerk Leah Litman said per Barnes that "I'm sure [Kennedy] knew no replacement was going to be exactly like him, and he had to have some sense which areas were likely to change," adding, "I don't know that he would have predicted how quickly it would change."

University of Virginia law professor Richard Re, another Kennedy protégé, simply noted, "Frankly, it's everything important" that Kennedy did which is being swept away.

"For more than a dozen years, it was Kennedy who cast the deciding vote when colleagues on the left and right were equally divided (in about two-thirds of those cases, studies showed, he leaned right)," Barnes explained. "But six justices on the current Court are more conservative than Kennedy, and three are on the left. That means fewer opportunities for a median justice to break a 4 to 4 tie."

Barnes nails down several decisions in which Kennedy played a crucial role and then years later were reversed by his one-time staffers. These include abortion rights, "partisan gerrymandering" and the role that the federal government should have in regulating elections, affirmative action, environmental protections, capital punishment, and same-sex marriage.

According to University of California, Berkeley Law School Dean Erwin Chemerinsky, "The arrival of the two conservative successors gave conservatives more leeway to take controversial cases, and still prevail even if not all of the Court's right flank agrees," Barnes wrote. "That was the case with Roe, where Roberts voted with his fellow conservatives to restrict abortion rights but not to get rid of the precedent."

Moreover, per Barnes, "Chemerinsky noted that in Kennedy's last term on the Court, he did not side with the liberals in any of the close cases. He thinks it is difficult to predict with certainty how the justice would have voted on some of the cases that have come before the Court since then."

View Barnes' column at this link (subscription required).

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