Justice Anthony Kennedy Associate Justice Anthony Kennedy speaks before administering the oath of office to Judge Neil Gorsuch as U.S. Supreme Court associate justice in the Rose Garden at the White House in Washington, D.C., on Monday, April 10, 2017. Photographer: T.J. Kirkpatrick/Bloomberg The Supreme Court this week lost its famed swing vote in Justice Anthony Kennedy. A Reagan-era appointee, Kennedy was the longest-serving member of the bench, serving 31 years before announcing his retirement Wednesday. In a time of rapid technological transformation, Kennedy's absence leaves a question mark around the high court's approach to data privacy and the evolving role of technology in U.S. society. Mutchler Lyons partner Terry Mutchler sees a bleak path forward for freedom of speech and transparency in a post-Kennedy court. “For me as a First Amendment lawyer, I felt like there was an earthquake under my feet,” Mutchler said. “The practical reality is that Justice Kennedy stood in the breach between the First Amendment and the loss of significant privacy, both in terms of privacy, the digital age, the internet. I think that basically we need a legal Richter scale to measure the consequence of this, and I don't think that's an overstatement,” she added. Kennedy's opinions tend toward a fairly contextual approach to technology, leaving a somewhat variable track record around how and where citizens can expect privacy in their technology. The justice signed off on decisions in Riley v. California and United States v. Jones to block law enforcement groups from seizing mobile device and GPS data. More recently, Kennedy argued in Carpenter v. United States that individuals do not have an expectation of privacy around their location data, as he believed that data belonged primarily to cellphone carriers rather than individuals. “It is true that the Cyber Age has vast potential both to expand and restrict individual freedoms in dimensions not contemplated in earlier times,” Kennedy wrote in his dissent to Carpenter, which barred government groups from taking location data from cell sites without a warrant. “I think we cannot even see the breadth and the depth of the loss in Justice Kennedy,” Mutchler said, adding that the pace of development has now far outstripped the high court's ability to rule on the relevant technology of the day. “The scariest part of Kennedy's retirement is we don't even know that the technology that's out there that he could've been an important voice on.” Where speech is concerned, Kennedy tends to approach technology with far less variability. In his Packingham v. North Carolina ruling last year, Kennedy wrote the 5-4 opinion, joined by the liberal justices, barring the state from banning sexual offenders from social media platforms, writing that to do so would be to prohibit reasonable access to “what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” “This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium,” Kennedy wrote in Packingham. Kennedy's retirement opens the door for Trump to appoint a second Supreme Court nominee. The short list he put forth as a candidate for office included Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit; Diane Sykes of the Seventh Circuit; and William Pryor of the Eleventh Circuit. Kavanaugh was linked earlier in his career to domestic spying under President George W. Bush , and has ruled fairly broadly in the D.C. Circuit for law enforcement's use of personal data , while both Sykes and Pryor are known conservative jurists. The three join 22 other potential selections on Trump's list. Despite Kennedy's somewhat irregular approach to privacy in technology, Mutchler thinks his legacy on the matter is almost certain to shift course in his replacement. “I think that the Supreme Court rudder just got turned, and we're going to head in a direction different than I'd like to see as a First Amendment expert and a transparency lawyer,” Mutchler noted. Conservative appointees on the Supreme Court don't necessarily have an expressly restrictive role around data privacy. Chief Justice John Roberts, nominated by Bush in 2005 and a conservative by most partisan measures, has also veered from the traditional conservative course numerous times, including in the Riley and Carpenter decisions. Regardless of who is ultimately slated to take Kennedy's place on the court, Mutchler thinks that the court's near future will be largely defined by the stances it collectively takes on technology and privacy issues. “I believe that technology and privacy, and by that the First Amendment and transparency, that's where the action is in the coming decade,” Mutchler noted. “I think it has seismic problems, but I hope that when we revisit this issue after the appointment and the first several cases, we'll see a picture that perhaps is not as dark and dreary as what is in my mind.”