Supreme Court Ends Term With No Retirement Announcements [Update: Kennedy Retires]

It's been eight years since we've seen a Supreme Court retirement, and despite speculation there were none announced today.

Despite much anticipation, the Supreme Court once again ended its term with no retirement announcements:

The Supreme Court adjourned on Wednesday without announcing the retirement of any justices.

Chief Justice John Roberts adjourned the court for the summer following months of heavy speculation that the court’s swing voter, Anthony Kennedy, was planning to step down.

Retirement announcements have sometimes happened in the days following the final day of the court’s term.

Justice Sandra Day O’Connor sent a letter to the White House on July 1, 2005, four days after the term ended, notifying the president of her plans to retire upon the confirmation of her replacement.

But the lack of an announcement on Wednesday will likely quiet talk about a possible retirement for the time being.

While the rumors largely centered on Kennedy, some had also thought Justice Clarence Thomas was also considering calling it quits.

Republicans on Capitol Hill had practically been urging a justice to retire, some even announced definitely one was coming.

As was the case last term, the speculation about potential retirements circled mostly around Justice Anthony Kennedy, who will turn 82 years old in July and has been on the Court since February 1988. Over the past two years, Kennedy has been at the center of retirement speculation largely due to the fact that, after eight years of the Obama Administration, the White House and the Senate were both back in Republican hands and most observers assumed that Kennedy would prefer to that his replacement be named by a Republican President and confirmed by a Republican Senate. Therefore, today’s final day of sitting for the Court was being watched closely for any possible indication that Kennedy could decide to confirm the rumors that have circulated for two years now.

In April 2017, for example, Senate Judiciary Committee Chairman Chuck Grassley, who arguably would be among those who might have inside information about such matters, dropped hints of a potential retirement at the end of the term. While Grassley didn’t mention Kennedy by name but it was clear who he was referring to. The speculation around Kennedy picked up again during the final days of the term last June, and much of it was focused on the fact that nearly all of Kennedy’s former law clerks would be in Washington for a reunion that the Justice holds every couple of years. As I noted on both occasions, though, one major signal that Kennedy would not retire could be found in the fact that he 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. In the end, there was no retirement by Kennedy or anyone else. Several days after the end of last June’s June term, though, it was reported that Kennedy was advising law clerks he was interviewing for the term that begins in October 2018 that he could decide to retire at the end of October 2017 Term, which means that if they were hired they would end up being reassigned to other Justices, or potentially to whoever might be appointed and confirmed to replace him. More recently, Nevada Senator Dean Heller speculated about a Kennedy retirement in a speech to supports but this seemed more like an effort by the Senate’s most vulnerable Republican to energize his base  Additionally, Grassley hinted at a possible retirement again last month but, as with Heller’s remarks it seems clear that this was meant more for consumption by the base than a revelation of any actual inside information.

In addition to Kennedy, there has also been some speculation that the expiration of this term could see the end of Justice Clarence Thomas’s time on the Court. Like Kennedy, it’s likely that Thomas would prefer to see himself replaced by a Republican President and Senate and, while he is a few years younger than Justices Ginsburg, Kennedy, and Breyer, at 70 years old as of last Saturday he is getting up there in years and has been on the Court since 1991, making him the second-longest serving Justice currently on the Court after Kennedy. While Thomas has been among the Court’s quietest members, he has been also been among its most prolific writers. Between majority opinions, dissents, and concurrences, Thomas has written the most opinions of any Justice this term, including yesterday’s opinion striking down a California law regarding Crisis Pregnancy Centers and abortion.  In Thomas’s case, though, there’s been some speculation that after 27 years on the Court he might have been ready to retire and spend more time on his favorite summer activity of touring the country in his RV with his wife.

As was the case last year, though, the Court has adjourned for the summer and, despite the rumors, there was no announcement of a retirement from Justice Kennedy or any other Justice at the end of today’s Court session. While it’s still possible we could get something on that later this week or in the first week of July, it’s generally been the case that retirements are announced on the last day of the term or, as was the case for Justices Souter, and Stevens, earlier than that to give the President and Congress time to name and confirm a replacement nominee. So, it looks like the make-up of the Court will stay the same through next term barring unforeseen circumstances.

Update 2;07pm: The Supreme Court has announced that Justice Kennedy is retiring after all:

My post on the Kennedy retirement can be found here.

FILED UNDER: Law and the Courts, Supreme Court, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. teve tory says:

    If Trump replaces Kennedy, Roe is toast. (If I’m wrong on that, let me know). But I’m curious if it’ll exceed that. IANAL so I don’t know what the answer is to this question: could SCOTUS somehow prohibit abortion nationally? More speculatively, could they discard Griswold and let states ban contraception again too?

  2. An Interested Party says:

    What got retired was public unions…of course so many conservatives would tell us that workers don’t need unions…that stagnant wage growth will just fix itself…”right-to-work” indeed…

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  3. @teve tory:

    Even if the Court were to overturn Roe and/or Griswold, the most that would result would be to return those matters to the states. I can’t think of any case whereby the Court could or would outlaw abortion nationwide on its own and I doubt even the most conservative Justices would advocate such a position.

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  4. Kylopod says:

    @teve tory:

    If Trump replaces Kennedy, Roe is toast.

    That could be. Personally, I’m not sure about Roberts. Based on how he handled the 2012 Obamacare decision (where he changed his mind at essentially the last minute), my impression is that he has something of a “do no chaos” philosophy. His Court is the most conservative SCOTUS in decades, having given us a string of landmark right-wing 5-4 decisions, but I think he wants to avoid starting the Second Civil War.

    Of course, in no way am I urging anyone to be complacent about this. If Trump gets to replace Kennedy or any of the liberals, it’s still a catastrophe whether Roe goes or not (and I can easily see them chipping away at abortion rights even if they don’t quite eliminate Roe).

  5. Kathy says:

    [..] and most observers assumed that Kennedy would prefer to that his replacement be named by a Republican President and confirmed by a Republican Senate.

    I suppose that doesn’t mean the Cheetto and the cowardly Senate.

  6. Franklin says:

    S**t.

    1
  7. Scratch this post, guys.

    As I note in an update, it was announced this afternoon that Kennedy is retiring. Post coming soon

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  8. Kathy says:

    Well, got that one wrong.

    I hear Michael Cohen is not busy at the moment. You can write decisions from prison, right?

  9. Mikey says:

    Senate Democrats must do everything in their power–up to and including shutting down the Senate–to ensure Donald Trump does not get any SCOTUS nominee to the floor during the current Congress. The midterm elections are less than 140 days away and the people must be allowed to state their preference.

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  10. Kathy says:

    @Mikey:

    Senate Democrats must do everything in their power–up to and including shutting down the Senate–to ensure Donald Trump does not get any SCOTUS nominee to the floor during the current Congress.

    Unless they take control of the Senate, I don’t see what on Earth they could do.

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  11. CSK says:

    @Kathy:

    You know Trump wants Judge Jeanine Pirro.

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  12. teve tory says:

    @Mikey: You’re SOL Mikey. I’ll be amazed if they don’t seat a new justice before the elections.

  13. Kathy says:

    @CSK:

    But Cohen was his lawyer, therefore he’s the best. It’s axiomatic. Surely the Cheeto with the tiny hands wants the best people.

  14. KM says:

    @Doug Mataconis:

    Even if the Court were to overturn Roe and/or Griswold, the most that would result would be to return those matters to the states.

    Cold comfort for women trapped in rural areas or red states who can’t afford to travel to saner ground. People forget – you need money (it’s not like they’re $3.50 and even Greyhound can be pricey if you’re poor or young) and time (time off of work asked last minute for whenever you can schedule something? Good luck!) to make these things happen if you need to travel. So what if NY keeps abortion legal – how does that help a 16yr in MI who’s got $20 to her name and parents asking why she’s going to be gone for the weekend?

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  15. CSK says:

    @Kathy:

    No, no, no. Do try to keep up. Cohen’s a nice guy, sure, but he had very little to do with Trump’s affairs (assign any meaning you choose to that word; they all fit). I mean, really, Trump’s barely spoken to Cohen in…months? Years? Cohen’s just like the guy who brought the coffee.

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  16. Just nutha ignint cracker says:

    A potential ironic turn for “abolishing Roe v Wade” follows:

    Consider the possibility that states outlawing abortions will have those laws challenged via initiative/referendum processes and subsequently find those laws repudiated by the voters. I suggest this because, for better or worse, even Evangelicals don’t want their daughters having back alley abortions or drinking bleach (or whatever that folk legend was).

    I will admit it’s a stretch, but not impossible, particularly because ballots are secret here still. You can rail against abortion in public all you want and still vote to keep it in the privacy of the voting booth.