Retirement speculation shadows court’s final day

UPDATE (11:25 a.m.): The Supreme Court ended its term on Wednesday morning without any announcements of retirements.
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The Supreme Court is expected to end its term on Wednesday with one final major case challenging public sector union fees left to decide.

The most anticipated decision of the year came Tuesday, when the court in a 5-4 decision upheld Trump’s travel ban. 

That’s led to some speculation that a retirement announcement could happen on Wednesday, though there is no hard evidence one is coming.


The speculation for the last year has centered on the court’s swing vote, Justice Anthony Kennedy, but some have pondered if Justice Clarence Thomas is actually going to be the one to call it quits.

But previous court terms have also featured people guessing about retirements — and then it doesn’t come to pass.

The last retirement from the bench was in 2010. Justice John Paul Stevens, an appointee of President Ford, was 89 when he wrote to the president in April 2010 of his plans to retire at the end of June.

If the White House has been notified, it has not made it public.

In a piece for Slate, Richard Hasen, a professor at the University of California, Irvine School of Law, said Kennedy’s concurring opinion on Tuesday signals he’s done.

Kennedy seemed to warn Trump in a two-page ruling not to make public statements that could infringe on the Constitution’s protections for freedom of religion after the court set aside his anti-Muslim remarks in upholding the travel ban.

“Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise,” he wrote.

Hasen said that separate concurrence felt like a Kennedy mic drop.

“He’s done all that he can do to fix the problems in American society,” he wrote. “Now it’s up to those in power, and those who put them there.”

Leah Litman, an assistant professor of law also at the University of California, Irvine School of Law, who clerked for Kennedy, said she had the same reaction to Kennedy’s concurrency in the ruling.

But not everyone’s convinced a retirement is imminent.

Ian Samuel, a Climenko fellow and lecturer at Harvard Law School, said he doesn’t think the timing of the travel ban ruling signals anything.

“The Chief is the one who sets opinion-release schedules and it’s just not his nature to tip his hand that way,” he said in an email to The Hill.

“Remember, Obergefell wasn’t released on the last day, either. Sometimes things are just ready.”

Obergefell v. Hodges, which gave same-sex couples the right to marry nationwide in 2015, was issued on June 26. The court ended its term that year on June 29. The justices return to the bench at 10 a.m. to issue their final rulings. Any retirement announcement would likely come after the decisions are released.


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