Like clockwork, Washington has whipped itself into a frenzy over rumors of a possible retirement on the Supreme Court.
All eyes are on Justice Anthony Kennedy, 81, who reportedly considered calling it quits last spring. As the court’s current term winds to a close, speculation about his plans has again swept the capital, with court watchers searching for clues.
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 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.
Republicans on Capitol Hill have practically been willing Kennedy to retire, which would give the GOP’s Senate majority time to confirm his replacement before the midterm elections.
Sen. Dean HellerDean Arthur HellerDemocrats brace for tough election year in Nevada Democratic poll finds Cortez Masto leading Laxalt by 4 points in Nevada Senate race The Hill's Morning Report - Presented by Alibaba - To vote or not? Pelosi faces infrastructure decision MORE (R-Nev.), who is facing a tough reelection race, announced in a speech in March that “Kennedy will retire sometime around early summer,” Politico reported.
And last week Senate Judiciary Committee Chairman Chuck GrassleyChuck GrassleyFill the Eastern District of Virginia On The Money — Progressives play hard ball on Biden budget plan Hillicon Valley — Presented by LookingGlass — Congress makes technology policy moves MORE (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 TrumpDonald TrumpMcAuliffe takes tougher stance on Democrats in Washington Democrats troll Trump over Virginia governor's race Tom Glavine, Ric Flair, Doug Flutie to join Trump for Herschel Walker event MORE 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.
Artemus Ward, a political science professor at Northern Illinois University who wrote the book “Deciding To Leave: The Politics of Retirement from the United States Supreme Court,” said if Kennedy is going to retire, now is the time to do it.
“Grassley is trying to put public pressure on him to do it now because they may lose control of the Senate,” he said.
Though liberal on gay rights, Ward noted that Kennedy is, after all, still a Republican.
“This might be his last chance in life to retire under a Republican president and a Republican-controlled Senate,” he said.
Occasionally, the justices will announce or at least signal their plans to retire at their reunions with their former law clerks. Kennedy holds one of those reunions every five years.
Sam Erman, an associate law professor at the University of Southern California Gould School of Law who clerked for Kennedy, said he’s heard no indication that the justice plans to step down.
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.
Then again, it’s possible that people are watching the wrong justice for a retirement announcement.
Samuel said it’s entirely possible that Justice Clarence Thomas, the court’s leading conservative, sees this as a good time to go spend his golden years traveling the country with his wife in their RV.
“That sounds less crazy to me than Kennedy saying, ‘I‘m tired of being the most powerful man in legal society,’” he said.
Thomas, 69, has not given any public signals he is considering retirement.
A Thomas vacancy would be less consequential since Trump is sure to name another conservative to replace him, keeping the court’s ideological balance the same.