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America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Justice Anthony Kennedy to retire from US Supreme Court

SCOTUS
Washington (CNN) Justice Anthony Kennedy, a conservative who provided key votes for same sex-marriage, abortion access and affirmative action, will retire from the Supreme Court.

The retirement is effective July 31, Kennedy said in a letter to President Donald Trump on Wednesday.

Kennedy's decision to step down could transform the Supreme Court for generations. Trump will have his second opportunity to nominate a justice and will likely replace Kennedy with a young, conservative jurist. That would create a bloc of five staunch conservative justices who could move the court further to the right and cement a conservative majority for the foreseeable future.

The nomination battle will likely ignite a firestorm on Capitol Hill as it comes just a year after Republicans changed the rules of the Senate in order to push through the nomination of Justice Neil Gorsuch, Trump's first nominee.

A senior White House official said Trump will push for the swift confirmation of a new Supreme Court justice "before the midterm elections."

The swing vote


Kennedy, 81, controlled the outcome of cases on hot-button issues like no other justice in recent history, as he often was the "swing vote" between the four liberal justices and the four more conservative justices.

A Ronald Reagan appointee who took the bench in 1988, Kennedy's most lasting legacy will most likely be in the area of gay rights. In 2015, in it was Kennedy who penned Obergefell v. Hodges, the landmark opinion that cleared the way for same-sex marriage nationwide.

"They ask for equal dignity in the eyes of the law and the Constitution grants them that right," Kennedy wrote.

Personal dignity and liberty are constant themes in Kennedy's jurisprudence as well as the limitation of federal power over the sovereignty of the states.

Kennedy disliked the label of "swing vote," but he did side with his conservative colleagues on issues such as campaign finance, gun control and voting rights. He also cast a vote with conservatives in Bush v. Gore, the 2000 case on disputed electoral results that cleared the way for the presidency of George W. Bush.

Kennedy authored the majority opinion in Citizens United v. FEC striking down election spending limits for corporations and unions in support of individual candidates -- an opinion that liberals and Democrats on the campaign trail vowed to overturn.

To the dismay of conservatives, however, he joined the liberals on the court in other areas.

Kennedy voted to reaffirm the core holding of Roe v. Wade in 1992, only to vote to uphold a federal ban on a particular abortion procedure in 2007.

Anthony Kennedy
Nine years later, he sided once again with the liberals on the court to strike down a Texas law that abortion rights supporters thought was the strictest nationwide. Without Kennedy's vote, the law would have been allowed to go into effect, inspiring other states to pass similar legislation.

In the same term, Kennedy pivoted on the issue of affirmative action when he voted for the first time in favor of a race- conscious admissions plan at a public university.

After that term, former acting Solicitor General Neal Katyal said, "It is very much Justice Kennedy's court."

"You can't understand how important his affirmative action opinion is without understanding his earlier jurisprudence," Katyal said. "For decades, he has been the court's most eloquent voice on the need to be color blind -- why he changed his mind is something historians will debate for decades."

Kennedy also wrote the decision striking down the death penalty for juvenile offenders in Roper v. Simmons.

He reflected on his role in close decisions in a 2010 interview.

"If the case is close 5-4 and let's say you are on the side that prevailed with the majority, there are not a lot of high-fives and back slaps. There is a moment of quiet, a moment of respect, maybe even sometimes awe in the process. We realize that one of us is going to have to write out a decision which teaches and gives reasons for what we do."

Source: CNN, Ariane de Vogue, June 27, 2018


Anthony Kennedy: US Supreme Court judge to retire in July


SCOTUS
Supreme Court Justice Anthony Kennedy is set to retire, giving President Donald Trump the chance to cement a conservative majority on the top court.

The conservative has been a pivotal vote on many decisions including the 5-4 rulings that decided same-sex marriage and upheld abortion rights.

In his letter to Mr Trump, Justice Kennedy expressed "profound gratitude" for having served in the highest court.

Justice Kennedy, 81, will retire on 31 July, per his letter to Mr Trump.

He is the second oldest justice on the nine-member court.

"Please permit me by this letter to express my profound gratitude for having had the privilege to seek in each case how best to know, interpret, and defend the Constitution and the laws that must always conform to its mandates and promises," Justice Kennedy wrote.

Justice Kennedy was nominated by President Ronald Reagan and he began his term in 1988.

He penned the Supreme Court's first major gay-rights decision in 1996, protecting LGBT Americans from discrimination.

In 2015, he authored the landmark opinion which gave LGBT citizens the right to marry.

Donald Trump
During a meeting with Portuguese President Marcelo Rebelo de Sousa at the White House, President Trump said he would select a nominee to replace Justice Kennedy from a list of 25 potential court candidates that his campaign had compiled during the election.

Mr Trump called Justice Kennedy "a great justice" who "displayed great vision" and "tremendous heart".

He said the process to replace him would begin immediately.

"Hopefully we will pick someone who is just as outstanding", he said.

Mr Trump added that he learned of the judge's retirement about 30 minutes ago, when Justice Kennedy came to the White House to meet him.

The White House also released a statement thanking Justice Kennedy for his 30 years of service as a "tireless voice for individual rights".

"His words have left an indelible mark not only on this generation, but on the fabric of American history."

Source: BBC News, June 27, 2018


Anthony Kennedy is retiring from the Supreme Court: What it means for LGBT rights


NYPD car, Gay Pride 2018
The Supreme Court’s leading champion of gay rights Justice Anthony Kennedy has retired, and will likely be replaced by a less LGBT-friendly candidate.

81-year-old Kennedy, who was the longest serving member of the Court, announced on Wednesday that he would step down from his position, which will give President Donald Trump the opportunity to change the direction of the Supreme Court.

Kennedy, who was a Republican appointee, has been the swing vote on many key votes including being responsible for legalising same-sex marriage in the US.

Without Kennedy the court will be split between four liberal justices, appointed by Democratic presidents and four conservatives, named by Republicans.

Trump’s choice of successor is likely to give conservatives a solid majority, and will come from an updated list 25 of nominees that he put out during his campaign.

According to the Associated Press, the prominent names on the list are Judges Thomas Hardiman of Pennsylvania and William Pryor of Alabama and Judge Brett Kavanaugh, who serves on the federal appeals court in Washington.

In 216, South Florida Gay News, reviewed the previous LGBT rulings of some of Trump’s Supreme Court picks.

They found that Judge Hardiman previously wrote an opinion for a three-judge panel, saying a gay man could not say he was discriminated against because of religion because his employer fired him because the employer’s religious beliefs were that “a man should not lay with another man.” However, the Hardiman panel ruled that the gay employee’s claim that he was discriminated against “because of sex” should have been submitted to a jury.

South Florida Gay News found that Judge Pryor joined a three-judge panel decision in 2016 that said the court had no authority to review a Haitian transgender man’s petition to stay in this country because he had been convicted of crimes and had failed to establish a likelihood of future persecution.

But in 2011, Pryor joined two other judges to affirm a district court ruling in favor of a transgender employee. The employee claimed her employer fired her based on sex and because of her gender identity disorder. The district court ruled for her on the basis of sex discrimination.

Before Kennedy’s retirement announcement Senator Chris Coons vowed to use pride month to share all of Trump’s anti-LGBT candidates for judicial posts nationwide.

On Wednesday he posted about potential candidate Ryan Bounds, nominated to be a judge on the Ninth Circuit Court of Appeals, who claimed that “#LGBT Americans liked to ‘fancy [themselves] oppressed’ and therefore see discrimination where it does not exist.”

During his 30-year-reign Kennedy was involved in the Court’s first major pro-gay rights decision.

In 1996’s Romer v. Evans, he invoked the 14th Amendment’s Equal Protection Clause in striking down a Colorado state constitutional amendment that prevented cities and towns from adopting their own bans on discrimination against gays, lesbians, or bisexuals.

The other two older justices, Ruth Bader Ginsburg, 85, and Stephen Breyer, 79, are Democratic appointees who would not appear to be going anywhere during a Trump administration if they can help it, according to the Associated Press.

Source: Pink News, Eve Hartley, June 27, 2018

Justice Kennedy Retires, Putting Rights in Jeopardy


Donald Trump
Supreme Court Justice Anthony Kennedy is retiring, likely to be replaced with a more conservative justice, with repercussions for LGBT rights and other progressive causes for years to come.

Kennedy, the author of key rulings for LGBT rights, including marriage equality, announced his retirement this morning. The justice, who turns 82 next month, was nominated by President Ronald Reagan in 1987 and confirmed by the Senate in 1988.

Kennedy wrote the rulings striking down Colorado’s antigay Amendment 2 in 1996, antisodomy laws in 2003, the main part of the Defense of Marriage Act in 2013, and all remaining anti-marriage equality laws in 2015. Most recently, he delivered a mixed message in the Masterpiece Cakeshop case, asserting that government had to uphold gay rights but undoing the work of the Colorado Civil Rights Commission, finding it had shown insufficient respect for the religious beliefs of a baker who refused to create a cake for a same-sex couple’s wedding.

Kennedy has been considered the court’s crucially important swing vote, but now Donald Trump is likely to nominate a much more conservative jurist to replace him, with consequences for LGBT rights, abortion rights, and much more  “A Trump-nominated successor to Kennedy would likely become the court's fifth reliable conservative, joining Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and [Neil] Gorsuch,” NBC News reports. “Because only Thomas has declared opposition to Roe v Wade, it's uncertain whether opponents of abortion would have the five votes needed to overturn it.”

Progressive groups greeted the news of Kennedy’s retirement with alarm. “Justice Kennedy played an historic role in vindicating the constitutional right of same-sex couples to be treated the same as anyone else," said a statement issued by People for the American Way president Michael Keegan. “And while he wasn’t a reliable voice for women’s reproductive rights or civil rights, he was willing to stand against some of the far-right’s worst excesses when it came to attacking choice and issued or joined some important civil rights rulings. Most of these were narrow 5-4 rulings that could be reversed by a single vote on the Court. His retirement means both marriage equality and the right to abortion in the United States, as well as key civil rights rulings, are in grave danger. Donald Trump has made clear that, left unchecked, he’ll appoint a Supreme Court Justice who wouldn’t hesitate to toss aside precedent to enact a dangerous and extreme agenda.

“Whoever is confirmed to the seat will serve for life, and the values they bring to the job will shape our country for a generation. Americans need a fair-minded constitutionalist on the bench, someone who understands the real world and how the law impacts all Americans. We can’t afford another narrow-minded elitist who will protect corporations and the wealthy instead of all Americans, and who will roll the clock back on women, LGBTQ people, workers, and people of color. The stakes for this nomination couldn’t be higher, and senators should make clear that they’ll oppose any nomination that isn’t the result of meaningful bipartisan consultation.”

Mara Keisling, executive director of the National Center for Transgender Equality, issued this statement: “It is impossible to overstate how much is at stake for transgender people and anyone concerned with basic fairness in this country. We hope every Senator knows the American people do not want 40 years of Trump’s values on the Supreme Court.

“In just the first year of his tenure, Justice Gorsuch has waged war on voting rights, labor rights, and equality under the law. Yet another Trump appointee would make this situation far worse. The next justice could cast pivotal votes on whether it is legal to fire a transgender employee, target transgender students at school, or refuse health care to transgender patients. Unfortunately, every member of President Trump’s ‘shortlist’ has been vetted to ensure they will not uphold these basic rights.”

Rick Zbur, executive director of Equality California, called for delaying a vote on Kennedy's successor until after this November's midterm election: "The stakes for the next nomination are too high for our community to sit back and let the White House ram through another anti-LGBTQ extremist. It is incumbent upon all of us to ensure Justice Kennedy's replacement is willing to stand up to the Trump-Pence Administration and protect our civil rights. We urge every member of the United States Senate who supports equality and social justice for the LGBTQ community, for women, for immigrants and for communities of color to refuse to confirm any nominee until after the November midterm elections.

"As Senator McConnell said in 2016, 'The American people are perfectly capable of having their say on this issue, so let's give them a voice. Let's let the American people decide.'" McConnell, the Senate majority leader, had refused to put President Barack Obama's nominee Merrick Garland to a vote after Justice Antonin Scalia died, waiting until after Obama was out of office and letting Trump put forth a nominee.

Kennedy’s string of LGBT rights rulings began in 1996 with Romer v. Evans, in which the court struck down Colorado’s Amendment 2, a voter-approved measure that would have prevented the state or any of its cities or counties from banning antigay discrimination. “We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else,” Kennedy wrote for the court majority. “This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.”

In 2003, he wrote the majority opinion in Lawrence v. Texas, which invalidated all remaining antisodomy laws in the U.S. “Petitioners’ right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention,” Kennedy wrote, adding, “The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual’s personal and private life.”

In 2013, he authored the U.S. v. Windsor opinion striking down section 3 of the Defense of Marriage Act, which kept the federal government from recognizing same-sex marriages. “DOMA’s principal effect is to identify a subset of state- sanctioned marriages and make them unequal,” he wrote. “The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities.”

And in the 2015 Obergefell v. Hodges decision, which took marriage equality nationwide, he wrote, “In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

Source: The Advocate, Trudy Ring, June 27, 2018


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