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Legal Learning: Justice Kennedy's retirement won't change much

I'm tired of hearing and reading people who are crying "disaster" now that Justice Anthony Kennedy is retiring from the Supreme Court. President Trump has nominated Brett Kavanaugh to replace Kennedy, and many commentators are saying that the new judge will make the Court much more conservative.

James ManahanU.S. Sen. Jeff Merkley, D-Ore., called Kennedy's retirement "a disaster for everyone who believes in the 'We the People' vision of the Constitution."

Rachel Tiven of Lambda Legal said: "We are shocked and saddened that a justice who was once the defender of dignity for LGBT people and our families on the court would chose this moment to hang up his robe."

It is true that Justice Kennedy has taken a "liberal" point of view on some social issues. Although he is a Catholic, in 1992 he voted not to overrule Roe v. Wade, the abortion decision. In 2005, he led a five-justice majority prohibiting the death penalty for children who commit murder. He wrote the groundbreaking decision in 2015 upholding a right to same-sex marriage in every state.

But he also wrote the 5-4 opinion in Citizens United in 2010, which opened the floodgates to political spending from billionaires and corporations. In 2008 he was the fifth vote to strike down D.C.'s ban on possessing handguns, completely changing the meaning of the Second Amendment. He cast the decisive vote in 2000 giving the election to George W. Bush.

And lately, he has sided with his conservative colleagues on every big case. He was the decisive vote to uphold Trump's travel ban, weaken public employee unions and strike down a California law designed to tell women about the availability of abortion.

Look at these cases, all decided just this past month by 5-4 votes — many of which got almost no publicity. In all of them, Kennedy joined the four conservative judges: Roberts, Thomas, Alito and Gorsuch. All four liberal judges – Ginsburg, Sotomayor, Breyer and Kagan – dissented:

• June 11 — Hustad held that Ohio's process of removing voters on change-of-residence grounds does not violate federal law.

• June 21 — Wisconsin Central held that employee stock options are not taxable "compensation" under federal law.

• June 22 — Currier held that since defendant consented to separate trials on multiple charges against him, his second trial did not violate the constitution's double jeopardy clause.

• June 25 — Ohio v. American Express held that prohibiting merchants from discouraging use of the American Express card does not violate federal antitrust law.

• June 25 — Abbott refused to strike down new districting maps, saying the state does not have to show a lack of discriminatory intent.

• June 26 — Trump v. Hawaii upheld the president's edict banning people from certain countries from entering the United States.

• June 26 — Becerra struck down a California law that required crisis pregnancy centers to provide information about abortion providers.

• June 27 — Janus struck down an Illinois law that required non-union employees to contribute partial dues.

Every one of these decisions was important, and in every one of them Kennedy sided with the conservatives. Kennedy is often called a swing vote on the Supreme Court, but in most cases he swung to the right, as Kavanaugh will. We can expect many more 5-4 decisions, like the ones from last month, all swinging to the right.

When Brett Kavanaugh is confirmed by the Senate, he is unlikely, in my opinion, to vote to overrule Kennedy's "liberal" decisions on abortion, the death penalty, and same-sex marriage. Those have become well accepted precedents supported by the vast majority of Americans.

Things really aren't going to change much after Anthony Kennedy's retirement. So quit moaning.

James H. Manahan is a Harvard Law School graduate. He handles family law, wills and probate in and around Lake County, and does mediation everywhere. He writes a regular column on legal issues for the News-Chronicle. The opinions expressed in this column are those of its author and are not to be attributed to his employer. He can be reached at jimmanahan@gmail.com.

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