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The changed composition of the court, then, appears to be the prime motivation for the court’s intervention. The high court steps in when lower courts disagree about a legal question, but that was not the case on abortion and affirmative action.Įven if there was a split over the Clean Water Act, the justices had turned away several appeals before Kennedy’s retirement and the death of Justice Ruth Bader Ginsburg in 2020. None of these issues demanded the court’s attention at this moment.

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In 2006, Kennedy wrote the court’s controlling opinion that governs how to decide whether the Clean Water Act applies. The issue is whether their property contains wetlands that bring it under the Clean Water Act. Kennedy dissented from the Grutter decision, but in 2016, he wrote the majority opinion that again upheld affirmative action in higher education in a case from Texas.Īlso last week, the court said it would consider an appeal from landowners who have been blocked from building a house near a scenic Idaho lake. Bollinger, which sustained the consideration of race among many factors in college admissions. Last week, the justices agreed to take up a challenge to O’Connor’s 2003 opinion for the court in Grutter v. Wade as ‘settled law’ increasingly called into question Wade decision entirely.įrom the archives (December 2021): Past Supreme Court nominees’ stated belief in Roe v. The court suggested in arguments in December that it would at the very least uphold Mississippi’s ban on abortions after 15 weeks, well before viability, and could overrule Casey and the 1973 landmark Roe v. Casey that preserved the right to an abortion until the point of viability, when a fetus can survive outside the womb. In 1992, O’Connor, Kennedy and Justice David Souter, also now retired, jointly wrote an opinion in Planned Parenthood v. Another Trump appointee, Justice Neil Gorsuch, also reported to Kennedy when he was a high-court law clerk the same year as Kavanaugh.Ĭapitol Report (July 2018): Trump set to make Supreme Court even more pro-business with Kavanaugh pickĪbortion rights are facing their stiffest test in nearly 30 years. One of three appointees of President Donald Trump, Kavanaugh generally appears to be more conservative than Kennedy, for whom he once worked.

He stepped down in 2018, his seat filled by Justice Brett Kavanaugh. Kennedy, 85, declined to comment for this story. O’Connor, 91, withdrew from public life in 2018 when she revealed that she has dementia. If you think you’ve been helpful and then it’s dismantled, you think, ‘Oh dear.’ But life goes on. “What would you feel?” she said at a College of William & Mary event in Williamsburg, Virginia, in 2009, when asked what she thought about recent abortion and campaign finance rulings that would have come out differently had she remained on the court. The first woman to serve on the Supreme Court, O’Connor let it be known more than 12 years ago that she was not happy to see her work being “dismantled” by a court that grew more conservative when she retired in 2006 and was replaced by Justice Samuel Alito. See: Biden says he’ll name replacement next month for Supreme Court Justice Stephen Breyer But the change is unlikely to affect the outcomes or the balance on a court that will retain a 6-3 conservative majority. The other issues are expected to be argued in the fall and decided by June 2023.įollowing Justice Stephen Breyer’s announcement that he is retiring, a new justice is expected to be on the court when it hears the affirmative-action and water-pollution cases in the fall. Since Kennedy and O’Connor played pivotal roles in some of the court’s biggest decisions, Litman said, “it’s not particularly surprising to see some of those decisions come under attack.”Ī decision on abortion is expected by early summer. “It’s just evidence that the middle or center of the court has moved dramatically right,” said Leah Litman, a University of Michigan law professor who once worked for Kennedy. Kennedy or O’Connor, or both, wrote the opinions that have been called into question on all three topics. The court already was weighing a dramatic rollback of abortion rights when last week it added cases that could end the use of race in college admissions and limit the reach of the nation’s main water pollution law, the Clean Water Act. Capitol Report (June 2018): Conservative group launches ad campaign for Trump pick to replace retiring Associate Justice Anthony Kennedy on Supreme Court

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