On June 27th, Justice Anthony Kennedy announced his retirement after 30 years of service as an Associate Justice of the Supreme Court. This set in motion the nomination of Brett Kavanaugh by President Trump and the beginning of a prolonged and contentious confirmation process ultimately leading to Kavanaugh’s appointment as the 114th Justice on the Court.

In recent years, this “advise and consent” role of the Senate has become increasingly political, leading to Senate votes almost completely along political party lines. This could have an unfortunate negative impact on the perception the public has of the Court and its work, only adding to a sense that judges are nothing more than “politicians in black robes.” As Chief Justice John Roberts lamented in a speech several years ago, “if the Democrats and the Republicans have been fighting so fiercely about whether you’re going to be confirmed, it is natural for some member of the public to think, well, you must be identified in a particular way as a result of that process.”

To the same effect, Justice Elena Kagan recently commented “The Court’s strength as an institution of American governance depends on people believing it has a certain kind of legitimacy—on people believing it’s not simply just an extension of politics, that its decision making has a kind of integrity to it. If people don’t believe that, they have no reason to accept what the court does.”

Over the last eleven years of Justice Kennedy’s service on the Court, he played a particularly significant role as the Court’s “swing” Justice, casting the deciding vote when the other eight Justices divided along conservative/liberal lines, with four tending conservative and four tending liberal. Notwithstanding his occasional “swing,” Justice Kennedy clearly tended conservative. Going back to 2005, in 5-4 cases split along ideological lines, Justice Kennedy voted with the more conservative Justices on the Court the majority of the time in all but three terms.

That having been said, Kennedy deserved his reputation as the “swing” vote by joining the more liberal side of the Court on a number of particularly significant occasions. He and two other Republican-appointed Justices, Sandra Day O’Connor and David Souter, crafted a plurality opinion preserving the core of Roe v. Wade’s holding that states couldn’t make abortion illegal. In later terms, he authored majority opinions that determined that states could not criminalize same-sex sex and that states must allow same-sex couples to marry. He was unwilling to allow the death penalty to be used in cases involving minors and the mentally incapacitated. He wrote the opinion finding that habeas corpus rights apply to persons held in Guantanamo Bay and he was willing to hold states responsible for overcrowded prisons.

Apart from the significance of his tie-breaking voting history, Justice Kennedy’s swing vote lent considerable credence to the notion that the Court is impartial. When he caused the Court to become less predictable, the institution benefited by appearing to be above sheer partisanship. “Justices who served as swing voters or drifted ideologically have made it possible to think about the court in nonpartisan terms,” commented Emily Bazelon, a lecturer at Yale Law School in a recent New York Times magazine article on the Court. Justice Kagan has said "It’s been extremely important for the court that there has been a person who found the center, where people couldn’t predict. That’s enabled the court to look impartial and neutral and fair.”

In the wake of the politicized confirmation process that surrounded Brett Kavanaugh’s appointment to the Court, Chief Justice Roberts has responded with an obvious effort to repair the Court’s public image. In a recent appearance before a large crowd in Minnesota, he promised that the Court serves “one nation” and “not one party or interest.” However, with the swing Justice now retired, it will be more difficult for the new Court to live up to the Chief Justice’s commitment at least in public perception.