Anthony Kennedy Is Not Stupid – By Dahlia Lithwick and Neil S. Siegel – FEB. 5 2017


He’s not going to step down just because one decent conservative judge was nominated to the Supreme Court.

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U.S. Supreme Court Justice Anthony Kennedy arrives for the funeral of Antonin Scalia on Feb. 20, 2016, in Washington, D.C.
Chip Somodevilla/Getty Images

There has been a lot of chatter in the media about the strategic considerations behind the selection of Judge Neil Gorsuch to fill the vacant seat on the U.S. Supreme Court. Was it a move made at least in part to mollify Justice Anthony Kennedy about the direction of the court on Donald Trump’s watch and thus to coax him into retirement? As Peter Baker reported this week in the New York Times, “The idea is to show Justice Kennedy, 80, that should he step down at some point, Mr. Trump would select as his replacement a nominee similar to Judge Gorsuch, and not one so inflammatory or outside the mainstream as to be unacceptable to Justice Kennedy.”

The question then becomes whether the selection of Gorsuch, by all accounts a bright, likable, and temperate jurist, is going to reassure Kennedy that he can safely leave the court, and his judicial legacy, in the hands of a Justice Gorsuch and a President Trump.

That’s doubtful. Here’s a question you might find useful in pondering this problem: What does Gorsuch think about Planned Parenthood v. Casey (1992), Lawrence v. Texas (2003), U.S. v. Windsor (2013), and Obergefell v. Hodges (2015)?

These are the cases in which Kennedy, in his role as “swing voter,” respectively preserved the core of the abortion right protected in Roe v. Wade; struck down Texas’ ban on same-sex intimacy; rejected the Defense of Marriage Act’s discriminatory definition of marriage as limited to opposite-sex couples; and held that the fundamental right to marry that the court has long protected includes same-sex marriage. Gorsuch almost certainly believes that all of Kennedy’s opinions in these cases were deeply misguided.

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