A bombshell dropped in Washington, DC, when Justice Anthony Kennedy went to the White House on Wednesday to inform President Donald Trump that he would be retiring from his seat on the U.S. Supreme Court at the end of July. In a week of momentous 5-4 rulings, including the powerful free speech victory against compelled abortion advertising in NIFLA v. Becerra, news of the high court vacancy now to be filled by President Trump and a Republican-led Senate shook the capital.
“This week’s 5-4 decisions are a vivid reminder that we must have Supreme Court justices who honor the values of life and liberty at the very core of our Republic,” said Dr. Jerry A. Johnson, president and CEO of National Religious Broadcasters.
Justice Kennedy, an appointee of President Ronald Reagan who was confirmed to his post in 1988, has been widely viewed as a swing vote on the court. He was key to rulings celebrated by activists on the Left, including Planned Parenthood v. Casey, which helped fortify the infamous Roe v. Wade abortion decision, as well as United States v. Windsor, striking down the federal Defense of Marriage Act, and then two years later Obergefell v. Hodges, which redefined marriage in the United States. However, he also wrote the majority opinion in Citizens United v. Federal Election Commission, a free speech decision decried by liberals, as well as the recent Masterpiece Cakeshop v. Colorado Civil Rights Commission ruling that reprimanded government leaders for their hostility to a baker’s Christian beliefs.
In his formal letter to the President, Kennedy wrote, “For a member of the legal profession it is the highest of honors to serve on this Court. 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 and the laws that must always conform to its mandates and promises.”
The White House thanked Kennedy for his service, saying he was “a tireless voice for individual rights and the Founders’ enduring vision of limited government.” President Trump also indicated he will use the list of conservative jurists that originated during his 2016 campaign when seeking to fill the coming vacancy.
Regarding this new opening, which could shape America’s legal landscape for decades, NRB’s Johnson added in his statement, "Free speech and religious liberty hang in the balance, and those values would have suffered dearly if Justice Gorsuch had not been on the bench. I urge President Trump to nominate a Constitution-honoring individual in the mold of Justice Scalia once again, and for the Senate to confirm him or her quickly.”
Senate Majority Leader Mitch McConnell (R-Ky.) was quick to declare that the Senate will take up this nomination this autumn. Anticipating the battle to come, he said, “It is imperative that the President’s nominee be considered fairly and not be subjected to personal attacks.”
Thus far, President Trump’s judicial nominations have reflected a keen understanding of the vital role that judges play in our constitutional order. Judges must interpret the law fairly and apply it even-handedly. Judicial decisions must not flow from judges’ personal philosophies or preferences, but from the honest assessment of the words and actual meaning of the law. This bedrock principle has clearly defined the President’s excellent choices to date.
McConnell finished his statement declaring that now was a time to appreciate Justice Kennedy’s service. On that note, it is appropriate to consider Kennedy’s parting words in his last two concurring opinions released this week. In Trump v. Hawaii, which upheld the President’s proclamation placing restrictions on individuals entering the United States from eight nations, Kennedy stated:
The First Amendment prohibits the establishment of religion and promises the free exercise of religion. 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.
Finally, in NIFLA v. Becerra, Kennedy lambasted California’s law that had targeted pregnancy care centers for their pro-life values. In a final rebuke to the state leaders in his hometown of Sacramento, California, the retiring justice criticized them for congratulating their own “forward thinking.” “[I]t is not forward thinking to force individuals to ‘be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable,’” he said, quoting a 1977 ruling. Rather, Kennedy declared:
It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come.
Concluding that California’s law imperiled freedom, Kennedy made a statement that may reverberate in the years ahead: “Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief.”
By Aaron Mercer, Vice President of Government Relations
Published: June 29, 2018