UCI Law Faculty React to Justice Kennedy's Retirement
"Though hardly a fierce advocate for environmental protection, Justice Kennedy has been crucial in providing a moderating voice on the U.S. Supreme Court on environmental issues such as climate change regulation, water quality protection, and plaintiff standing to sue. In Massachusetts v. EPA, his vote was vital in confirming the importance of science in agency decision making, as well as mandating that EPA must decide whether and how to regulate greenhouse gases to mitigate global climate change. The opinion also confirmed that states have special standing to sue to protect the resources under their jurisdiction. And in Rapanos v. United States, his opinion served to ensure federal water quality protections for wetlands for which there is a significant nexus to navigable waters. A more conservative replacement may be willing to help unravel these and otherwise erode important legal protections of public health and natural resources."
“International law is part of our law and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. This has been a tenet of US jurisprudence for many years. However, it is one that has been attacked by some members of the Supreme Court and many so-called originalists. Justice Kennedy served a useful and valuable role in recognizing the value of looking to international and other nations’ law and reasoning to analysis in our courts. That approach is one likely to be frowned upon by President Trump’s nominee.
"Justice Kennedy’s retirement makes it less likely that the Court will find the consideration of race in selective college admissions processes permissible. Justice O’Connor wrote in an opinion in 2003 upholding affirmative action that such admissions practices should not be necessary after 2028; a more conservative Court may not wait that long."
"Justice Kennedy's retirement marks a chilling time for women's reproductive healthcare - and not because Justice Kennedy demonstrated a sophisticated regard for the interest of women or their reproductive rights. Indeed, Justice Kennedy has been part of a conservative, male guard, which has shown antipathy toward or at best disregard for the rights and concerns of women. In a line of cases, Justice Kennedy has sided with the majority (usually all male) questioning of women's mental health after abortion (Gonzales v. Carhart), limiting women's rights to file suit under Title VII of the Civil rights act for gender pay claims (in Ledbetter v. Goodyear Tire & Rubber Co); denying women plaintiffs class action status to sue Walmart based on gender discrimination (Wal-Mart v. Dukes); and subordinating female employee's contraceptive health access through their company's insurance plans (Burwell v. Hobby Lobby) to name a few recent cases. Justice Kennedy's significant regard for the dignity of marriage equality, must be acknowledged for it moved the Court out of a shameful past. Yet, Justice Kennedy's record must also be measured by his concerns for the dignity of women. Here, his lack of vision for a constitution that could embrace the highest ideals for women will be remembered."
"There’s precious little Democrats can do, at least in the short term, either to stop the nomination of another clone of Justice Antonin Scalia, or to stop the political benefit President Donald Trump is likely to get from such an appointment. Fixing the Supreme Court will be a long-term project." (Read more from Prof. Rick Hasen here, and in a presicent piece from Tuesday, which predicted Kennedy's retirement here.)