# Anthony Kennedy to retire this year? **URL:** \ **Category:** Miscellaneous and Personal Stuff I Must Share\ **Created:** [May 2, 2017, 12:34pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709 "2017-05-02T12:34:08Z")\ **Posts on this page:** 10\ **Page:** 5
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [May 4, 2017, 10:35pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/81 "2017-05-04T22:35:32Z")
> [@Elendil\_s\_Heir](#): > > I think it would be a profoundly bad idea, cause a political firestorm and not actually change the text of the Constitution the way an amendment does, but under the Supremacy Clause, yes, it would be the supreme law of the land. Not so. In [Bond v. US](https://www.supremecourt.gov/opinions/13pdf/12-158_6579.pdf): > [@](#): > > If that is true, then the possibilities of what the Federal > Government may accomplish, with the right treaty in > hand, are endless and hardly farfetched. It could begin, as > some scholars have suggested, with abrogation of this > Court’s constitutional rulings. For example, the holding > that a statute prohibiting the carrying of firearms near > schools went beyond Congress’s enumerated powers, > United States v. Lopez, 514 U. S. 549, 551 (1995), could be > reversed by negotiating a treaty with Latvia providing > that neither sovereign would permit the carrying of guns > near schools. Similarly, Congress could reenact the invalidated > part of the Violence Against Women Act of 1994 > that provided a civil remedy for victims of gendermotivated > violence, just so long as there were a treaty on > point—and some authors think there already is, see > MacKinnon, The Supreme Court, 1999 Term, Comment, > 114 Harv. L. Rev. 135, 167 (2000). > But reversing some of this Court’s decisions is the least > of the problem. Imagine the United States’ entry into an > Antipolygamy Convention, which called for—and Congress > enacted—legislation providing that, when a spouse of a > man with more than one wife dies intestate, the surviving > husband may inherit no part of the estate. Constitutional? > The Federalist answers with a rhetorical question: > “Suppose by some forced constructions of its authority > (which indeed cannot easily be imagined) the Federal > Legislature should attempt to vary the law of descent in > any State; would it not be evident that . . . it had exceeded > its jurisdiction and infringed upon that of the State?” The > Federalist No. 33, at 206 (A. Hamilton). Yet given the > Antipolygamy Convention, Holland would uphold it. Or > imagine that, to execute a treaty, Congress enacted a > statute prohibiting state inheritance taxes on real property. > Constitutional? Of course not. Again, The Federalist: > “Suppose . . . [Congress] should undertake to abrogate a > land tax imposed by the authority of a State, would it not > be equally evident that this was an invasion of that concurrent > jurisdiction in respect to this species of tax which > its constitution plainly supposes to exist in the State > governments?” No. 33, at 206. Holland would uphold it. > As these examples show, Holland places Congress only > one treaty away from acquiring a general police power. And in [Reid v. Covert:](https://scholar.google.com/scholar_case?case=2412865658294709561&hl=en&as_sdt=6&as_vis=1&oi=scholarr) > [@](#): > > The obvious and decisive answer to this, of course, is that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution. > > Article VI, the Supremacy Clause of the Constitution, declares: > > “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; . . . .” > There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in “pursuance” of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary 17\*17 War, would remain in effect.[31] \*\*It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights—let alone alien to our entire constitutional history and tradition—to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions.[32] In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. \*\*The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined. There is a lot more in Reid. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [May 5, 2017, 3:15am UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/82 "2017-05-05T03:15:16Z")
It does not appear that the court actually ruled on the constitutional issue presented in either iteration of _Bond_, and _Reid_ was about an executive agreement, not a treaty. > **[Bond v. United States (2011)](https://en.wikipedia.org/wiki/Bond_v._United_States_(2011))** > > Bond v. United States, 564 U.S. 211 (2011), is a decision by the Supreme Court of the United States that individuals, just like states, may have standing to raise Tenth Amendment challenges to a federal law. > The issue arose in the prosecution of an individual under the federal Chemical Weapons Convention Implementation Act for a local assault that used a chemical irritant. The defendant argued, in part, that the application of the law violated the Constitution's federalism limitations on the sta... > **[Bond v. United States (2014)](https://en.wikipedia.org/wiki/Bond_v._United_States_(2014))** > > Bond v. United States, 572 U.S. 844 (2014), follows up on the Supreme Court's 2011 case of the same name in which it had reversed the Third Circuit and concluded that both individuals and states can bring a Tenth Amendment challenge to federal law. The case was remanded to the Third Circuit, for a decision on the merits, which again ruled against Bond. On appeal, the Supreme Court reversed and remanded again, ruling that the Chemical Weapons Convention Implementation Act of 1998 did not reach Bon... > **[Reid v. Covert](https://en.wikipedia.org/wiki/Reid_v._Covert)** > > Reid v. Covert, 354 U.S. 1 (1957), was a 6–2 landmark decision of the United States Supreme Court holding that United States citizen civilians outside of the territorial jurisdiction of the United States cannot be tried by a United States military tribunal, but instead retain the protections guaranteed by the United States Constitution, in this case, trial by jury. Additionally, a plurality of the Court also reaffirmed the president’s ability to enter into international executive agreements, thou... ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [May 5, 2017, 7:13pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/83 "2017-05-05T19:13:21Z")
Both of those cases discussed the issue at hand - the ability of the treaty power to supersede constitutional amendment process or invalidate other constitutional provisions. The idea was resoundingly against the interpretation you’ve put forward even if they did not rule on that constitutional issue presented in Bond. There is strong indication that the interpretation you’ve presented would not be upheld. Reid was about executive agreement, and specifically uses the treaty example. Not perfectly controlling but it describes and discards the exact scenario you have put forward. ---
**Author:** ![rbroome](https://avatars.discourse-cdn.com/v4/letter/r/838e76/32.png) [@rbroome](https://boards.straightdope.com/u/rbroome)\ **Post date:** [May 5, 2017, 10:45pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/84 "2017-05-05T22:45:21Z")
> [@Shodan](#): > > The Ninth Amendment says nothing of the sort. > > This is the kind of thing conservatives object to - making it up as they go along. > > Regards, > Shodan Well, now that the 9th amendment has been brought to my attention, I think your claim is a bit strong. Reading the background and reasoning for the ninth amendment, it was written to avoid anyone making the argument that since the constitution and the Bill of Rights listed certain protections, say the right to keep and bear arms, that didn’t mean that other rights not mentioned in the Bill of Rights were not important. It addressed the exact problem that is highlighted by the abortion debate. Just because abortion isn’t specifically protected in the constitution doesn’t mean that it might not be a protection. Now the argument remains whether abortion is a protected right, but the ninth amendment specifically protects the discussion. And that protection IS in the constitution. ---
**Author:** ![PastTense](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pasttense/32/14550_2.png) [@PastTense](https://boards.straightdope.com/u/PastTense)\ **Post date:** [June 26, 2017, 12:09pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/85 "2017-06-26T12:09:09Z")
**Anthony Kennedy retirement watch at a fever pitch** > **[Anthony Kennedy retirement watch at a fever pitch | CNN Politics](https://www.cnn.com/2017/06/24/politics/anthony-kennedy-retirement-rumors/index.html)** > > Justice Anthony Kennedy, the man who so often determines the outcome of the most controversial Supreme Court cases, is himself the center of brewing speculation. If he retires and is replaced by another conservative will Roe vs Wade be overturned? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 26, 2017, 1:41pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/86 "2017-06-26T13:41:15Z")
> [@PastTense](#): > > **Anthony Kennedy retirement watch at a fever pitch** > [http://www.cnn.com/2017/06/24/politics/anthony-kennedy-retirement-rumors/index.html](http://www.cnn.com/2017/06/24/politics/anthony-kennedy-retirement-rumors/index.html) > > If he retires and is replaced by another conservative will Roe vs Wade be overturned? I don’t think Roberts would allow that. Thomas would have no problem overturning Roe, and maybe even Alito. But after that, I think it gets very iffy. At the very least, I think we’d need one more “liberal” justice to retire and be replaced by a very, very conservative justice. And even then, I think it’s a long shot. ---
**Author:** ![madsircool](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/madsircool/32/3432_2.png) [@madsircool](https://boards.straightdope.com/u/madsircool)\ **Post date:** [June 26, 2017, 2:26pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/87 "2017-06-26T14:26:05Z")
> [@PastTense](#): > > **Anthony Kennedy retirement watch at a fever pitch** > [http://www.cnn.com/2017/06/24/politics/anthony-kennedy-retirement-rumors/index.html](http://www.cnn.com/2017/06/24/politics/anthony-kennedy-retirement-rumors/index.html) > > If he retires and is replaced by another conservative will Roe vs Wade be overturned? Probably not but all it would do would put abortion back in play in politics. It wouldn’t make it illegal. ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [June 26, 2017, 2:51pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/88 "2017-06-26T14:51:56Z")
> [@madsircool](#): > > Probably not but all it would do would put abortion back in play in politics. It wouldn’t make it illegal. Or, split the difference: imagine a Supreme Court that says, _yeah, on second thought, this isn’t really a call for the federal government; it’s a matter for each state._ So maybe it’s illegal in Alabama – but it’s legal in New York. And et cetera. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 26, 2017, 3:28pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/89 "2017-06-26T15:28:54Z")
No Kennedy retirement. At the rate Roberts is going, I hope he and Kennedy both retire. Gorsuch seems to be a for real conservative. To sum up my disappointment with Roberts today: 1. His stupid footnote 3 in Trinity Lutheran. 2. His joining of the summary reversal in Pavan. 3. His joining of the half-assed opinion/non-opinion on the travel ban cases. 4. His vote to deny cert in Perulta. Not a good day for Roberts’ conservative credentials. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 26, 2017, 5:09pm UTC](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709/90 "2017-06-26T17:09:10Z")
> [@The\_Other\_Waldo\_Pepper](#): > > Or, split the difference: imagine a Supreme Court that says, _yeah, on second thought, this isn’t really a call for the federal government; it’s a matter for each state._ > > So maybe it’s illegal in Alabama – but it’s legal in New York. And et cetera. I’m not sure how that is a “split the difference” opinion. It is all conservatives have asked for: a state by state determination. Nobody except the most hard core right wingers ask for an opinion to outlaw abortion in all 50 states regardless of state laws to the contrary. Such a position would be conservative judicial activism that, IMHO, is completely unsupported by the Constitution. [Previous page](https://boards.straightdope.com/t/anthony-kennedy-to-retire-this-year/785709.md?page=4)