“All eyes are on Justice Anthony Kennedy,” a Hill column writes as rumors increase of his imminent retirement. Liberals acknowledge that the ideological balance of the court will decidedly shift to the right should Anthony Kennedy be replaced by another Gorsuch like nomination.
Now the column points out that Kennedy has hired clerks for next year, saying that this fact alone may confirm that the justice plans on staying on at least another year.
Those who say Kennedy is here to stay – at least for now – point to the fact that he’s already hired his law clerks for the next term, as Above the Law reported.
“I don’t think he would have hired all four clerks for next year if he was seriously entertaining stepping down,” said Carl Tobias, a professor at the University of Richmond School of Law. “I just don’t think it’s going to happen.”
But then the Hill brings up another fact that the court is hearing a very small number of cases for the next term, which may signal that the court does not “know who their ninth member is going to be.”
But Ian Samuel, a Climenko fellow and lecturer on law at Harvard Law School, who clerked for the late Justice Antonin Scalia, said the small number of cases the court has granted could signal Kennedy is throwing in the towel. The court has only agreed to hear 15 cases so far next term.
“One possibility is they are not granting cases because they don’t know who their ninth member is going to be. … You could imagine Kennedy telling the chief, ‘I’d like to keep this between us, but I’d like to retire,’ and the chief saying, ‘Let’s see who Kennedy’s replacement is before we grant all these cases,'” Samuel said.
Some said the presence of Kennedy’s wife at the final oral arguments of the term could be a sign he’s on the way out the door. When Mary Davis was spotted in the courtroom on April 25, the press corps started buzzing about whether she was there to hear her husband’s last round of questioning from the bench. But SCOTUSblog’s Mark Walsh reported that the wives of Breyer, Alito and Gorsuch were seated in the VIP section too.
In their discussion about the possible retirement, the Hill gets to the biggest problem Democrats have with a Kennedy retirement. If he retires, this will enable Trump to lock in a nearly rock-ribbed conservative majority on the court, with the opportunity for even greater cementing of their control should one of the liberal members —such as the 85 year old Ruth Bader Ginsburg— dies in office.
And last week Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) told conservative radio host Hugh Hewitt he hopes a retirement is announced soon, if there’s one coming.
“I hope it’s now or within two or three weeks, because we’ve got to get this done before the election,” he said, adding a specific message to the justices: “If you’re thinking about quitting this year, do it yesterday.”
Kennedy, who was appointed to the bench in 1988 by President Ronald Regan, has gained notoriety as a moderate and pivotal swing voter on the court. He sided with liberals to legalize same-sex marriage, for instance, but helped the court’s conservatives strike down limits on campaign contributions.
If he were to step down, it would give President Trump the opportunity to appoint his second justice – and this time his pick could shift the ideological balance of the high court decisively to the right.
When will the public know for sure if a retirement is coming? John Roberts may announce the retirement at the last day of the term or Kennedy could announce a few days after the term ends as Sandra Day O’Connor did during George W. Bush’s second term in office.
Chief Justice John Roberts could also announce Kennedy’s plans on the last day of the term; in fact, many expect him to deliver the news if the rumors are true.
“It’s entirely possible that Kennedy says on the last day, ‘Peace. I’m out,'” said Josh Blackman, an associate professor of law at the South Texas College of Law in Houston.
The last retirement on the court was Justice John Paul Stevens. The Ford appointee was 89 when he wrote to the president in April 2010 of his plans to retire at the end of June.
Justice David Souter, a George H.W. Bush appointee, was 69 when he notified the White House in April 2009 of his plans to retire at the end of the term. The news leaked to the media almost immediately.
Justice Sandra Day O’Connor also sent a letter to the White House on July 1, 2005, three days after the term ended, notifying the president of her plans to retire upon the confirmation of her replacement, according to a Washington Post report. The Reagan appointee was 75.
But with such a leaky White House, experts aren’t expecting Trump to get a heads up if Kennedy retires.