Supreme Court Retirement Speculation Swirling Around Kennedy
Tomorrow marks the final day of the Supreme Court term that began last October. In the past, this has been a time of the month when the Court is being closely watched because of high-profile cases where the Court has yet to issue opinions. As was mostly the case last year, this year is a break in that pattern in that there have been only a handful of cases likely to have a wide-ranging impact on the law and American politics in the way that the decisions handed down in cases dealing with everything from the Affordable Care Act to same-sex marriage. The undecided cases remaining on the Court’s docket this year, by contrast, aren’t likely to be quite so impactful, with the possible exception of Trinity Lutheran Church v. Comer, a First Amendment case dealing with the question of whether a secular aid program that excludes religious groups violates the Free Exercise Clause. Additionally, we are awaiting a decision from the Court on the Federal Government’s application to lift the stay placed on President Trump’s Muslim Travel Ban. Beyond that, though, the biggest question about the coming end of the Court’s term among court watchers is whether or not it will see an announcement of a retirement, and the most heated speculation right now is about Associate Justice Anthony Kennedy:
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.
The rumors have swirled for months and the 80-year-old justice has done nothing either personally or though intermediaries to set the record straight on whether he will step down.
Helping drive the speculation, dozens of Kennedy’s former clerks are traveling to Washington to participate in a private clerk reunion that occurs regularly — and many of them wonder if it will be their last chance to meet with him while he is still on the bench.
Sources close to Kennedy say that he is seriously considering retirement, but they are unclear if it could occur as early as this term.
His departure would cause a seismic shift and offer President Donald Trump a chance to continue reshaping the court. Trump’s first nominee — Justice Neil Gorsuch, himself a former Kennedy clerk — joined the court earlier this year.
On one side is his age — a desire to spend more time with his grandchildren is driving any decision, and in many ways he has already established an enduring legacy on the court.
In terms of a replacement, Kennedy might take comfort in the list of 20 judges Trump has vowed to draw from when considering the next vacancy on the court.
Another consideration is that if Kennedy were to delay his retirement for a year, his replacement would face confirmation during the mid-term election year, something that could further inject politics into an already controversial process.
On the other hand, Kennedy is well aware of his role on the court and could be alarmed by how politicized the confirmation process has become. Indeed, Republicans were forced to change Senate rules to make it easier to confirm Gorsuch after Democrats objected.
Kennedy might think it would make sense to remain on the bench until the political climate simmers down — although there’s no guarantee that would ever happen.
The rumors swirling around Kennedy aren’t new, of course. In addition to the fact that his 29 years on the bench make him the longest serving Justice on the bench right now, he is also among the oldest with only Justice Ginsburg being older than he is. Additionally, the fact that there is both a Republican President and a Republican-controlled Senate means that Kennedy can be assured that he would be replaced by a conservative-leaning Justice who would most likely be easily confirmed. This also isn’t the first time that Kennedy’s possible retirement has become the subject of speculation. Several months ago after the successful confirmation of Justice Gorsuch, Senate Judiciary Committee Chairman Chuck Grassley seemed to predict that we would see another Supreme Court vacancy soon. Grassley didn’t name names at the time, and there is no sign that he had any inside information about Kennedy or any other member of the high court. In fact, the signs that we’re not likely to see any retirements this coming week are far stronger than the rumors indicating otherwise. As I noted at the time Grassley made his remarks, Kennedy had hired a full slate of law clerks for the upcoming October 2017 Term as had all of the other Justices on the Court. While this isn’t necessarily a dead giveaway that a Justice isn’t retiring, it is a strong sign that they’re planning on being around for the new term.
A Kennedy retirement, of course, could have a significant impact on the Court for some time to come. Many times during his three decades on the bench, Kennedy has been the swing vote between the Court’s liberal and conservative wings in high-profile cases. He has also been the decisive vote in many of the Courts most notable cases dealing with issues such as LGBT rights. This has included Roemer v. Evans, which struck down a Colorado law banning localities from enacting civil rights protections for LGBT individuals, Lawrence v. Texas, which struck down laws that purported to criminalize certain sex acts between consenting adults, United States v. Windsor, which struck down the most significant part of the Defense of Marriage Act, and Obergefell v. Hodges, which struck down the laws barring same-sex marriage in the states where it was still illegal at the time. In fact, tomorrow will mark both the end of the Court’s current term and the second anniversary of the Obergefell decision. Kennedy has also been a crucial swing vote on issues such as affirmative action, the Fourth Amendment, and other high profile issues. While it wouldn’t have quite the same impact as an appointment that would replace a Justice such as Ruth Bader Ginsburg or Stephen Breyer, a replacement for Kennedy by this President would likely mean someone more on the conservative side of the ledger than Kennedy and, like Justice Gorsuch, that nominee will likely remain on the Court for a long time to come.
Kennedy’s name isn’t the only one that has been floated as a possible retirement this year. There has been at least some speculation that Justice Clarence Thomas might take the opportunity presented by the election of a Republican President and a Republican-controlled Senate to step down. While Thomas is younger than Ginsburg, Kennedy, and Breyer, he is nearing 70 years old and has been on the Court for 26 years so a retirement on his part would not be a complete surprise. If Thomas retires, of course, it would have less of an impact on the Court since we would be seeing a conservative Justice being replaced by another conservative.
In the end, of course, all of this is just speculation until someone announces something. If it is going to happen, it would likely come after opinions are handed down tomorrow or shortly thereafter. If an announcement does come, though, it will make for an interesting summer of hearings and a vote either before Congress leaves town for the summer recess at the end of July or soon after it returns after Labor Day.