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The Kennedy Retirement: Bracing for a ‘Post-Persuadable' Conservative Justice - InsiderNJ


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By: Joe Hayden, Pashman Stein Walder Hayden

The announcement yesterday by Justice Anthony Kennedy that he was retiring as a Justice of the United States Supreme Court has created shock-waves around the Country for those who fear a dramatic shift in the balance of power between conservatives and liberals in the Court. During the past 24 hours, political commentators have spoken passionately about what they believe will be an epic confrontation between Republicans and Democrats as to the confirmation of Justice Kennedy’s successor.

Justice Kennedy served for 30 years on the Supreme Court and for over a decade was considered to be a swing vote between the conservative and liberal factions of the Court. In reality, he swung more for the conservative faction than the liberal faction. Statistically, he voted with the conservative majority more frequently than not when 5-4 decisions were rendered. Nonetheless, he was a “persuadable conservative” who believed in the factual circumstances of the case and legal nuance. For example, he voted and wrote in favor of a woman’s right to choose and for the expansion of gay rights and marriage equality. He also showed sympathy for criminal defendants through the years when he voted to strike down the application of the death penalty for those who were intellectually disabled or who committed crimes as juveniles. He was also sensitive to the rights of those who were incarcerated. During the past year, however, he appeared to have drifted back towards a more conservative posture since he voted with the conservative majority in every major 5-4 decision, including cases involving gerrymandering, gay rights, upholding President Trump’s travel ban and the major decision yesterday which held that mandatory payments to a public sector labor union violated the First Amendment Rights of a non-union member. But the key factor about Justice Kennedy remains: he was open-minded and “persuadable” and not an automatic vote for the hard-right position.

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