Last week, Supreme Court Justice Anthony Kennedy announced his retirement from the court this summer, sending Washington and the nation into a bit of a frenzy. WGBH News legal analyst and Northeastern Law professor Daniel Medwed joined WGBH's Morning Edition anchor Joe Mathieu to discuss the overall consequences of this change. The transcript below has been edited for clarity.
Joe Mathieu: So for starters, what are the short-term consequences for the court as he steps down?
Daniel Medwed: Well, we have to think about the next term. Right now, the court is filling up its docket for the next term and essentially it will probably go into slowdown mode. Among the thousands and thousands of requests for assistance the court receives each year — they're called petitions for a writ of certiorari — the court typically takes on only about 80 of them. And that number has dwindled recently. I think the court is going to take even fewer this year in recognition of the fact that it will likely be shorthanded going into the fall with only eight justices on the bench and that there's a real risk of a lot of 4-4 split decisions that would send an uncertain message to the lower courts. Now this is what the court did several years ago when Justice Scalia died and there was a delay in appointing Justice Gorsuch — sort of slowed down mode. But that's a short-term consequence. I think the long-term consequences are much more dramatic.
Joe Mathieu: Let's talk about them because a lot of commentators, a lot of analysts are talking about this as a sea change on the court that could alter the course of our case law for generations to come. That's quite a statement. Daniel, do you agree?
Daniel Medwed: To a large extent I do. On the one hand, Kennedy has exhibited these strong conservative inclinations but he sometimes sided with the progressive wing especially on social issues like abortion, affirmative action, same sex marriage. So he's often been characterized as the swing vote. Now, let's assume that Trump appoints a more steadfast conservative. Someone who will more reliably and consistently vote with the right wing block of Alito, Thomas, Gorsuch and occasionally Roberts. That's going to jeopardize a number of the cases where Kennedy was the swing vote. And it assumes, of course, that the court revisits those settled issues but it only takes votes from four justices to grant review of one of those writs of certiorari. But on the other hand I think it's important to remember that Kennedy was very conservative. The left has lionized him a bit in the past few days and I think, exaggerated his ideological flexibility. Remember, this is the man who authored 'Citizens United' — that was the opinion that found that corporations have a right to donate to political campaigns — a decision that dramatically altered our electoral politics and I think played a role in Trump's election.
Joe Mathieu: But in general, Roberts is more likely to vote with conservatives than Kennedy was?
Daniel Medwed: Absolutely. He's more likely to vote with conservatives than Kennedy but he has shown a leftward tilt, especially in the areas of health care and criminal justice. In fact, he was the author of that blockbuster Carpenter decision that came down to a couple of weeks ago, that held that the police must obtain a search warrant to get access to a suspect's cellphone location data — a major victory for privacy interests and the Fourth Amendment.
Joe Mathieu: So let's take a look at local impact. If there is any Daniel, you tell us, are there cases or doctrines in jeopardy that actually have an effect on our state?
Daniel Medwed: I think locally it will probably revolve around affirmative action. Kennedy has been a consistent, if lukewarm vote in favor of affirmative action. He was the author of the 2016 opinion — the Fisher opinion — that upheld a race conscious admission program at the University of Texas, in the face of an attack from a white applicant who'd been denied admission. I think the Trump nominee is invariably going to be opposed to affirmative action. That doctrine will be in jeopardy and as you know, Massachusetts is an education state. Colleges and universities are an important part of our Commonwealth and the end or curtailment of affirmative action could truly reshape the composition of colleges and universities. The demographics could be very different. So I think that's a doctrine that really could have a local impact.
