As news of Supreme Court Justice Anthony Kennedy's retirement broke on Wednesday, June 27, the conversation quickly pivoted to who President Donald Trump might appoint as the second court replacement of his term. More importantly, Kennedy's leave could trigger a much more conservative replacement, which would likely impact how the court rules on cases going forward. Of those issues, voting rights could be impacted by Justice Kennedy's retirement in big ways.
Kennedy was nominated by President Ronald Reagan, a Republican, in 1987 but although he leans more conservative, he's famous for being difficult to pin down ideologically. His departure will certainly rattle the nation, as it will likely shift the Supreme Court even further in alignment with the Republican party under Trump. Consider, for example, the issue of the Voting Rights Act of 1965, which was signed into law by President Lyndon B. Johnson, and which can be impacted by Supreme Court decisions. The law aimed to overcome legal barriers at the state and local levels that prevented African Americans from exercising their right to vote — namely, it banned things like literacy tests for African Americans as well as redistricting to water down voter impact. It was a sweeping legislative act from the president, and although it didn't eradicate voter discrimination entirely, it certainly put a dent in it.
Kennedy, generally, was unpredictable — but based on his voting history, it was believed that he would protect the Voting Rights Act when the Supreme Court heard cases dealing with its violation. But in 2013, the Supreme Court weakened the Voting Rights Act significantly in Shelby County v. Holder, per Vox, which Kennedy voted in favor of along a 5-4 split. Previously, the federal government required oversight for certain states that had a history of discriminatory practices in the '60s. In the 2013 case though, the court found that the process for determining which states were subject to oversight was unconstitutional, effectively striking down a vital part of the Voting Rights Act that existed to minimize racial discrimination at the polls.
“Problems remain in these States and others,” wrote Chief Justice John Roberts in the court opinion, “but there is no denying that … our Nation has made great strides” toward racial equity. Essentially, the majority ruled, racism in America was solved enough to not need rules to protect voters' rights anymore. Just a few years later, though, the need for voter protection laws resurfaced. Cases of voter discrimination against Asian-Americans and Pacific Islanders served as proof for advocates in 2016 that Shelby County v. Holder weakened voters' rights, and that new protections were needed.
So what does this mean going forward? Well, the theory is, if the Supreme Court could arrive at such a conservative decision with Kennedy on board — someone who occasionally voted in line with more liberal ideals — the damage a second Trump appointee could potentially inflict on long-held case law could be far-reaching. No one knows what will happen for sure, but issues that Kennedy typically sided with Democrats on (e.g. abortion, capital punishment, anti-LGBTQ legislation) are the ones most likely to be colored by the new appointee, per Vox.
According to a report from Politico, Kennedy was especially slippery on voting rights. In 2008, he helped bolster an Indiana voter ID law in a Supreme Court case Crawford v. Marion County Election Board, which was contested on the grounds that it might be unconstitutional to require government-issued photo ID at the voting booths. He also sided with conservatives on Monday, June 25, in a split decision that upheld Texas's redistricting plan, which some have alleged was colored by racism, per NPR. In general, though, Kennedy was seen as a swing vote between the more consistently liberal and conservative justices, and it was his vote that swung the majority in many cases. With a more staunchly conservative justice on the court appointed by Trump, cases about voting would almost certainly go towards a conservative majority, likely removing protections for voters' rights.
Trump's first appointee, Justice Neil Gorsuch, came to the bench after Senate Majority Leader Mitch McConnell blocked President Barack Obama's nominee, Merrick Garland. (Garland was nominated after Antonin Scalia's death in February 2016.) Within an hour after Justice Antonin Scalia died in February 2016, McConnell announced that he would block any Obama replacement, according to The Huffington Post.
“The American people should have a voice in the selection of their next Supreme Court Justice,” McConnell's 2016 statement read. “Therefore, this vacancy should not be filled until we have a new President.”
The Associated Press reported Wednesday that McConnell said his chamber will vote in the fall on Trump’s nominee. “It’s imperative that the president’s nominee be considered fairly and not subjected to personal attacks," McConnell said.
Perhaps the scariest thing about all of this is that Americans can only wait, call their elected officials, protest peacefully, and make their voices heard. Other than that, there's not much to prevent this from happening. As voters, the only recourse would be to participate actively in November (which you can and should do), as well as follow the appointment process as closely as you can. It will yield results that will outlast Trump's presidency.