The Future of Long-Standing Precedents After Kennedy

Gradual restricting of controversial precedents more likely than outright overturning

Justice Anthony Kennedy swears in Justice Neil Gorsuch on April 10, 2017. Kennedy’s retirement announcement sparked speculation and partisan fighting over his replacement. / THE WHITE HOUSE

Justice Anthony Kennedy’s June 27 announcement that he will retire from the U.S. Supreme Court at the end of July has left little doubt that his eventual replacement appointed by President Donald Trump will push the court further to the right. As of press time, Trump has not yet announced a nominee. And there has been much talk that a conservative majority could spell the end of long-standing precedents for hot-button issues such as abortion rights and affirmative action.

But the outright overturning of precedents such as Roe v. Wade or Obergefell v. Hodges is likely not as imminent as varying interest groups want. A push for narrow rulings and limiting the Supreme Court’s role as a political pawn, both intended to pre-serve it as an institution, have been hallmarks of the Roberts Court. And experts say that’s likely to keep the court from gutting long-established precedents outright. It’s more likely, they posit, that the court will chip away at left-leaning decisions over time.

“I guess the question is, is Chief Justice Roberts going to put institutional concerns ahead and say, ‘We don’t want to overturn these long-standing precedents outright on a 5-4 vote,’” said Sean Connelly, an appellate lawyer and former Colorado Court of Appeals judge.

To read this story and other complete articles featured in the July 9, 2018 print edition of Law Week Colorado, copies are available for purchase online.