Kennedy Retirement Puts More Responsibility on States to Protect Basic Rights

June 2018

WASHINGTON, D.C. — In light of the announcement of Supreme Court Justice Kennedy’s retirement, the State Innovation Exchange (SiX) drew attention to the heightened responsibility of state governments to protect the basic rights of Americans, including reproductive freedom, LGBTQ rights, civil rights, voting rights, and the rights of workers to fight for fairer working conditions.

“The next appointment to the Supreme Court could move the court further to the right for the next generation, reversing key rulings on access to abortion, marriage equality, voting rights, workers’ rights, and immigrant and refugee rights. It will be up to the states—and elected officials at all levels of government—to stand up and fight for the rights of Americans to live freely and with dignity,” said Sam Munger, SiX Director of External Affairs.

“While we hope that Congress does the right thing and does not rush through an extreme candidate, we will also support state legislators who will be critical in defending the hard-won rights of Americans to vote freely in elections, live and work without fear of discrimination, marry the person they love, and live a life of dignity.”

With states across the country already racing to pass abortion bans in an attempt to overturn Roe v. Wade, the Supreme Court decision that established abortion as a constitutional right, particular attention is on abortion access and Justice Kennedy’s swing vote on the Supreme Court.

“In the event of Roe v. Wade being overturned by the Supreme Court, the status of legal abortion depends entirely on the states,” said Kelly Baden, SiX Director of Reproductive Rights. “In that scenario, 23 states—home to over 120 million people—would be at risk of losing the right to abortion entirely. State legislators must be the critical backstop we need to ensure women and doctors are not criminalized for seeking safe, common reproductive health care services.”

In 2018, SiX launched the Reproductive Freedom Leadership Council, a cohort of 274 legislators from 43 states and counting, who endorse a bold platform of vision and values that makes it clear that we must each make our own decisions about our reproductive health, pregnancy, and parenting, free from political interference. These state legislators stand ready to defend the right to abortion and reproductive health.

Significant cases in which Justice Kennedy’s swing vote was crucial to preserve fundamental rights of American’s include:

  • Obergefell v. Hodges (Justice Kennedy wrote the majority opinion to make marriage equality the law of the land)
  • Planned Parenthood v. Caseyand Whole Woman’s Health v. Hellerstedt (key decisions on the right to access abortion)
  • Fisher v. University of Texas (key decision on affirmative action)
  • Kennedy v. Louisianaand Hall v. Florida (decisions to limit capital punishment)
  • Texas Department of Housing and Community Affairs v. Inclusive Communities Project(Justice Kennedy wrote the 5-4 decision declaring housing discrimination does not need be intentional to be illegal.)
  • Though the Supreme Court has punted on key decisions relating to partisan gerrymandering this term, Justice Kennedy has also been seen as a crucial vote to strike down the practice, calling it “incompatible with democratic principles,” including in the case Arizona State Legislaturev. Arizona Independent Redistricting Commission.