O n June 27, 2018, Justice Anthony M. Kennedy announced that, effective July 31, 2018, he would retire from active service as an Associate Justice on the Supreme Court of the United States. His decisive role on the Court, particularly during the Roberts Court era, cannot be overstated. While Justice Kennedy has been a critical vote on the Court for much of his 30-year tenure, since the October 2005 term that marked the beginning of the Roberts Court, Justice Kennedy has been the Court's "median Justice," voting for the winning side in a case more often than any of his colleagues in 9 out of 12 terms. During this era, the High Court issued a number of landmark rulings that spanned the ideological spectrum. On July 9, 2018, President Trump announced the nomination of Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) to fill the impending vacancy on the Supreme Court caused by Justice Kennedy's scheduled retirement. CRS reports analyzing Judge Kavanaugh's jurisprudence on particular areas of the law, as well as a tabular listing of lower-court decisions in which he authored opinions, are in preparation. Unlike Justice Antonin Scalia, his colleague for nearly 28 years on the High Court, Justice Kennedy did not subscribe to a particular judicial philosophy, such as originalism or textualism. Individual Liberty

Justice Kennedy's jurisprudence was often grounded in concerns for personal liberty, that is, freedom from government interference with "thought, belief, expression, and certain intimate conduct." Justice Kennedy's emphasis on liberty also manifested itself in a number of decisions he authored or joined on issues implicating religion. Structural Protections of the Constitution

The structural protections of the Constitution—i.e., restraints imposed on the federal government by the doctrines of separation of powers and federalism—also influenced Justice Kennedy's jurisprudence. Accordingly, for Justice Kennedy, separation of powers was a "defense against tyranny," and, in this vein, the Roberts Court era witnessed Justice Kennedy authoring or joining a number of majority opinions that invalidated on separation-of-powers grounds intrusions on the executive, legislative, or judicial functions. During the Rehnquist and Roberts Courts, Justice Kennedy often found himself joining majority opinions that recognized federalism-based limitations on the power of the federal government, establishing limitations on Congress's legislative powers and reaffirming protections for state sovereignty grounded in part in the Tenth and Eleventh Amendments. Given Justice Kennedy's deciding vote on many of the cases mentioned above, his replacement could have an especially influential role in a host of civil rights matters. These opinions have tended to defer to the authority of the political branches on national security matters. Justice Kennedy's views on the separation of powers placed him in the middle of the Roberts Court in cases concerning the allocation of powers among the three branches of the federal government, suggesting that Justice Kennedy's successor may be quite influential on the future direction of the Court's approach in such cases. Accordingly, because of the "difference one Justice [can] make" on the Court, Justice Kennedy's jurisprudence and the areas in which he was a deciding vote may be relevant considerations as the Senate determines whether to confirm the President's choice to replace the soon-to-be-retired Justice.
On June 27, 2018, Justice Anthony M. Kennedy announced that, effective July 31, 2018, he would retire from active service as an Associate Justice on the Supreme Court of the United States. His decisive role on the Court, particularly since the Roberts Court era began in 2005, cannot be overstated. The Roberts Court era has witnessed the Court issue a number of landmark rulings, many of which have involved matters where the sitting Justices were closely divided. Justice Kennedy typically voted with the majority of the Court in such cases. Since the October 2005 term that marked the beginning of the Roberts Court, Justice Kennedy voted for the winning side in a case more often than any of his colleagues in 9 out of 12 terms.
Unlike several other Justices on the Court, Justice Kennedy did not necessarily subscribe to a particular judicial philosophy, such as originalism or textualism. Instead, Justice Kennedy's judicial approach seemed informed by a host of related principles. First, Justice Kennedy's views on the law were often grounded in concerns for personal liberty, particularly freedom from government interference with thought, belief, expression, and certain intimate conduct. His emphasis on liberty manifested itself in a range of opinions he wrote or joined during his tenure on the Court, including on issues related to free speech, religious freedom, and government policies concerning same-sex relationships. Second, the structural protections of the Constitution—i.e., restraints imposed on the federal government and its respective branches by the doctrines of federalism and separation of powers—also animated Justice Kennedy's jurisprudence. For Justice Kennedy, separation of powers was a "defense against tyranny," and he authored or joined a number of Court opinions that invalidated on separation-of-powers grounds intrusions on the executive, legislative, or judicial functions. Likewise, during the Rehnquist Court and Roberts Court eras, Justice Kennedy joined several majority opinions that recognized federalism-based limitations on the enumerated power of the federal government, established external limitations on Congress's legislative powers over the states, and reaffirmed protections for state sovereignty. Third, Justice Kennedy's jurisprudence was undergirded by his view that the Court often has a robust role to play in resolving issues of national importance. With Justice Kennedy casting critical votes, over the last 30 years the Court has reasserted its role in a number of areas of law in which it was previously deferential to the judgment of the political branches.
Given Justice Kennedy's outsized role on the Roberts Court, whoever succeeds him could have an important influence on any number of areas of law. In particular, Justice Kennedy's votes were critical to the outcome of numerous Court decisions on matters relating to abortion, business law, civil rights, the death penalty, the regulation of elections, eminent domain, the environment, federalism, the First Amendment, gun rights, immigration, national security, oversight of the administrative state, and separation of powers. Accordingly, Justice Kennedy's jurisprudence in these areas—particularly in cases where he was the deciding vote—may be especially relevant to the Senate as it determines whether to approve the President's nominee to replace the soon-to-be-retired Justice.
On July 9, 2018, President Trump announced the nomination of Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) to– fill the impending vacancy on the Supreme Court caused by Justice Kennedy's scheduled retirement. CRS reports analyzing Judge Kavanaugh's jurisprudence on particular areas of the law, as well as a tabular listing of lower-court decisions in which he authored opinions, are in preparation.