The rumors of retirement swirling around Supreme Court Justice Anthony Kennedy have taken over Washington, writes the Hill’s Lydia Wheeler.
Speculation is divided, with some seeing signs that he is leaving and others saying he is likely to stay. But one thing is certain: Republicans are eager for Kennedy, 81, to retire as soon as possible so that Trump can nominate a conservative to replace him.
Will he go, or stay?
With the court’s term winding down, some observers see hints that this will be Kennedy’s last. Harvard lecturer Ian Samuel, who clerked for the late Antonin Scalia, said the unusually small number of cases, just 15, granted for the next term could be a sign that he’s on his way out.
“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.
Others noted that Kennedy’s wife was present when he gave the final oral arguments of the term. Mary Davis appeared in court on April 25 to witness what might have been the final questioning session of her husband’s career.
On the other hand, Kennedy already hired law clerks for the next term. This could be a sign that he’s preparing for another round of cases. “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.”
A former clerk for Kennedy, Sam Erman, an associate law professor at the University of Southern California Gould School of Law, said he hasn’t heard about any retirement plans. Justices sometimes indicate their plans at reunions with former clerks; Kennedy hosts one every five years.
The question could get cleared up at the very end of the term. It’s possible that Chief Justice John Roberts will make an announcement on the last day. “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.
Republicans eager for replacement
Republicans have urged for Kennedy to make his exit as soon as possible if he intends to leave, so that the Republican-controlled Senate can confirm a replacement before the midterm. Conservatives see a Kennedy vacancy as an opportunity to bring the highest court in the land to the right.
President Trump already made one conservative appointment in Neil Gorsuch, but replacing Kennedy with a conservative would decisively shift the balance of the court. Senator Chuck Grassley (R-Iowa), who chairs the Senate Judiciary Committee, told conservative radio host Hugh Hewitt that Kennedy should have retired “yesterday.”
“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 justice: “If you’re thinking about quitting this year, do it yesterday.”
A moderate “swing” justice appointed by Ronald Reagan, Kennedy helped legalize gay marriage, but also struck down limits on campaign finance. The prospect of Kennedy’s retirement has liberals fretting, so much so that The New York Times recently penned a pleading op-ed urging him to stay.
The last justice to step down from the Supreme Court was John Paul Stevens in 2010. Both Stevens and Justice David Souter, who retired in 2009, wrote to the White House of their plans to retire with months left in their respective terms. But Justice Sandra Day O’Connor didn’t give the White House a heads up, notifying President George W. Bush of her retirement three days after her term ended in the summer of 2005.
The court’s term ends in June.
Matthew Boose is a staff writer for Conservative Institute. He has a Bachelor's degree from Stony Brook University and has contributed to The Daily Caller and The Stony Brook Press.
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