Justice Anthony Kennedy (pic­tured) announced on June 27, 2018, that he will retire from the U.S. Supreme Court. During Kennedy’s thir­ty years on the Court, he became known as a swing vote, sid­ing with both the con­ser­v­a­tive and lib­er­al wings of the Court. His role as the Court’s swing vote extend­ed to some cru­cial death-penal­ty cas­es, includ­ing Roper v. Simmons (2005), in which the jus­tices struck down the death penal­ty for juve­nile offend­ers under age 18, and Kennedy v. Louisiana (2008), in which the jus­tices barred the death penal­ty for child rape and oth­er offens­es that did not result in death. He also pro­vid­ed the deci­sive fifth vote against a chal­lenge to lethal-injec­tion prac­tices brought by Oklahoma death-row pris­on­ers in Glossip v. Gross. In his opin­ion for the five-mem­ber major­i­ty in the Kennedy case, Justice Kennedy wrote: ​“When the law pun­ish­es by death, it risks its own sud­den descent into bru­tal­i­ty, trans­gress­ing the con­sti­tu­tion­al com­mit­ment to decen­cy and restraint. For these rea­sons we have explained that cap­i­tal pun­ish­ment must ​‘be lim­it­ed to those offend­ers who com­mit a nar­row cat­e­go­ry of the most seri­ous crimes’ and whose extreme cul­pa­bil­i­ty makes them ​‘the most deserv­ing of exe­cu­tion.’” Justice Kennedy was a lead­ing archi­tect of caselaw decid­ed under the Eighth Amendment’s ​“evolv­ing stan­dards of decen­cy.” Under that doc­trine, the Court looked to var­i­ous mea­sures of con­tem­po­rary American val­ues to deter­mine whether a nation­al con­sen­sus had evolved against a penal prac­tice. Justice Kennedy authored numer­ous deci­sions for the Court apply­ing or inter­pret­ing that doc­trine, includ­ing Roper and Kennedy, as well as 5 – 4 deci­sions that struck down statutes or prac­tices that risked exe­cu­tion of defen­dants with intel­lec­tu­al dis­abil­i­ty (Hall v. Florida (2014)) or would have per­mit­ted the exe­cu­tion of indi­vid­u­als whose extreme men­tal ill­ness caused them to become men­tal­ly incom­pe­tent after hav­ing been sen­tenced to death (Panetti v. Quarterman). In declar­ing uncon­sti­tu­tion­al Florida’s use of a strict IQ thresh­old in deter­min­ing whether defen­dants were intel­lec­tu­al­ly dis­abled and there­fore inel­i­gi­ble for the death penal­ty, Justice Kennedy wrote: ​“The death penal­ty is the gravest sen­tence our soci­ety may impose. Persons fac­ing that most severe sanc­tion must have a fair oppor­tu­ni­ty to show that the Constitution pro­hibits their exe­cu­tion. Florida’s law con­tra­venes our Nation’s com­mit­ment to dig­ni­ty and its duty to teach human decen­cy as the mark of a civ­i­lized world. The States are lab­o­ra­to­ries for exper­i­men­ta­tion, but those exper­i­ments may not deny the basic dig­ni­ty the Constitu­tion pro­tects.” Vann R. Newkirk II, writ­ing about Kennedy’s civ­il rights lega­cy in The Atlantic, said, ​“The Eighth Amendment has been invoked often by Kennedy and the four lib­er­al jus­tices as a legal weapon in the nation’s high­est court in order to curb the most dra­con­ian impuls­es of the crim­i­nal-jus­tice sys­tem.” In his res­ig­na­tion let­ter to the President, Justice Kennedy wrote, ​“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.”

(Vann R. Newkirk II, What Kennedy’s Absence Means for Civil Rights, The Atlantic, June 27, 2018; Greg Stohr, Anthony Kennedy, Swing Vote on U.S. Supreme Court, Will Retire, Bloomberg, June 27, 2018; Michael D. Shear, Supreme Court Justice Anthony Kennedy Will Retire, The New York Times, June 27, 2018; Richard Wolf, Justice Anthony Kennedy to retire, open­ing Supreme Court seat for President Trump, USA Today, June 27, 2018.) See U.S. Supreme Court.

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