NYT: Justice Kennedy Retirement Rumors Sweep Washington DC

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Supreme Court Justice Anthony Kennedy is the swing vote on the Supreme Court, and the NYT is reporting that rumors of his retirement are ‘swooping DC.’

Of course, almost this time last year, the same rumors were ‘swirling’, but these rumors seem to be more prolific and blatant.

Justices often try to retire when the president is of the same party as the one who appointed them. Justice Kennedy was appointed by President Ronald Reagan, a Republican.

He is a moderate conservative, and there is no reason to think a president of either party would replace him with someone similar.

NYT: Justice Kennedy Retirement Rumors Sweep Washington DC

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The NYT explains:

For the second year in a row, rumors that Justice Anthony M. Kennedy may retire from the Supreme Court are sweeping Washington. He is 81, and he is doubtless weighing many factors in deciding whether to stay. Among them, experts in judicial behavior said, are the tug of party loyalty, the preservation of his judicial legacy and how close his retirement would be to a presidential election.

Justice Kennedy has long held the decisive vote in many of the Supreme Court’s most contested and consequential cases, and his retirement would give President Trump the opportunity to move the court sharply to the right. If Justice Kennedy steps down, the confirmation fight over his successor will be titanic.

Justices often try to retire when the president is of the same party as the one who appointed them. Justice Kennedy was appointed by President Ronald Reagan, a Republican. President Trump may be an unconventional Republican, but he is a Republican.

Justices also try to retire early in a president’s term, generally in the first two years, according to a 2010 study by Ross M. Stolzenberg, a demographer at the University of Chicago, and James T. Lindgren, a law professor at Northwestern. The study considered justices who served between 1789 and 2006.

“If the incumbent president is of the same party as the president who nominated the justice to the court, and if the incumbent president is in the first two years of a four-year presidential term,” the study found, “then the justice has odds of resignation that are about 2.6 times higher than when these two conditions are not met.”

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Last summer,  the same rumor that  Justice Kennedy would announce his retirement in early 2018.


It wouldn’t be effective until the end of the current Term, around late June 2018. But Justice Kennedy was said to be planning on this early announcement to avoid a “Merrick Garland” situation. This would also have the added benefit of reducing the likelihood of SCOTUS becoming a big issue in the 2018 midterm elections.

Nina Totenberg reported at NPR:

It is unlikely that Kennedy will remain on the court for the full four years of the Trump presidency. While he long ago hired his law clerks for the coming term, he has not done so for the following term (beginning Oct. 2018), and has let applicants for those positions know he is considering retirement.

It’s no secret that Justice Kennedy has been considering retirement for some time. He even made a sly joke about it at last year’s clerk reunion.

At the end of his remarks, he said something along these lines: “There has been a lot of speculation about… a certain announcement from me tonight. And that announcement is: the bar will remain open after the end of the formal program!”

There is definitely precedent for a justice giving a heads up to clerkship applicants about the possibility of his retiring, as Greg Stohr of Bloomberg noted on Twitter:

The two justices that are most likely to retire are Kennedy and Ruth Bader Ginsburg.

Will it happen before 2020? Time will tell. They are both long past retirement age.

But Ginsburg is on a healthy exercise regiment and Kennedy seems to be moving along just fine.

Neither are what you would call Trump fans. While Ginsburg may be very ideologically opposed to the President, Kennedy is a moderate conservative.

I suspect that Justice Kennedy might have some personal distaste for certain aspects of President Trump, but has been said to have no problem with the President’s  Supreme Court shortlist. It includes a number of former Kennedy law clerks. And remember that President Trump’s first SCOTUS nominee, Justice Neil M. Gorsuch, is a former Kennedy clerk as well.

We will see!

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