Supreme Court Justice Kennedy, who has served on America’s highest court for thirty years, announced his retirement yesterday afternoon.
With news of his resignation came widespread speculation over the fate of previous Supreme Court rulings concerning same-sex marriage, abortion rights and criminal justice laws. For decades, Kennedy has served as a key swing vote, often siding with his liberal counterparts despite being sworn in by republican President Ronald Regan in 1988. The vacancy he leaves behind in his departure will be filled by Donald Trump, who already nominated conservative justice Neil Gorsuch to the bench during his presidency after the death of Antonin Scalia in 2016.
Whoever fills Kennedy’s seat will serve a crucial role in re-writing the history of American legislation and shaping its future. Here’s how a conservative justice filling this spot could swing the fragile 5-4 current voting system completely red.
ROE V WADE
With another conservative added to the bench, the republican crusade against women’s rights could finally come to a head. The court’s could take a bold stance and advocate for an all out reversal of Roe V Wade legislation that secured a woman’s right to safe and legal abortion. Or, a state could could pass a law banning abortion and wait for a challenge from the Supreme Court before the new justice is in place. A third option is for states to slowly chip away at Roe V Wade by proposing other restrictions around the legislation–like a ban on abortion up to 20 weeks, slowly limiting women’s access to reproductive care. A 2015 CDC study showed that Black women were having 47.7 abortions per 1000, compared to 9.8 abortions per 1,000 for White women. While the racial differentials are high, for many Black women, those numbers correlate with having no access to preventative methods that include birth control options and contraceptives. Overturning Roe V. Wade could lead Black women to seek more dangerous methods of terminating pregnancy, or it could force Black women to rear children they cannot afford to take care of which increases the likelihood of impoverished Black folks.
COURTS COULD RULE IN FAVOR OF RELIGIOUS CHALLENGES TO ANTI-DISCRIMINATION LAWs
Although separation between church and state is the law of the land, religious challenges to anti-discrimination laws create a loop-hole for folks to be prejudiced against others because of their sexual orientation or reproductive decisions. Faith based organizations can declare religious freedom when they don’t want to pay for women’s birth control through employer-provided health insurance. They can also discriminate against LGBT people under religious freedom when it comes to housing, hiring, customer service and same-sex marriage ceremonies held in their establishments. Restricting women’s access to birth control through their employer would further obstruct Black women’s access to reproductive healthcare and contraceptives. For LGBT people, another conservative seat on the bench could mean a reversal on the Supreme Court’s past ruling on the permissibility of same-sex marriage.
SOLITARY CONFINEMENT LAWS MAY NEVER BE INTRODUCED UNDER A NEW CONSERVATIVE COURT
Kennedy was in staunch opposition to solitary confinement laws, explaining in 2015, ”Research still confirms what this Court suggested over a century ago: Years on end of near-total isolation exact a terrible price.” Kennedy urged advocates to reconsider solitary confinement legislation, suggesting the practice be filed under cruel and unusual punishment which is protected under the 8th amendment. There are currently 80-100,000 people in solitary confinement in the US right now–and most prisoners stay in confinement for years. Judith Resnik, professor at Yale Law School, notes that “People of color are overrepresented in solitary confinement compared to the general prison population. In theory, if race wasn’t a variable, you wouldn’t see that kind of variation.” Without Kennedy, a ban on this form of punishment seems less likely. The case of Kalief Browder, a young man who committed suicide after being held in solitary confinement without trial for years for allegedly stealing a backpack, shed light on this inhumane issue and how it effects the mental stability of inmates, particularly inmates of color.
AFFIRMATIVE ACTION LEGISLATION COULD BE OVERTURNED
Although Kennedy’s career demonstrated a mixed voting record when it came to affirmative action, in 2016 Kennedy was the fifth vote to uphold a University of Texas at Austin affirmative action program that included students’ race in admissions decisions to encourage student body diversity. With Kennedy no longer in place to tilt the 5-4 vote, affirmative action policies that primarily benefit white women but also help POC in admissions and employment decisions could be ruled unconstitutional.