Senator Chuck Grassley, chairman of the Senate Judiciary Committee, told his native Muscatine Journal that he “would expect [another SCOTUS] retirement this summer.”
Rumors have circulated for months that another Justice may be ready to retire. Eighty-one year-old Anthony Kennedy is the obvious candidate. Of the other conservatives on the Court, Alito and Roberts are 67 and 62, respectively, and Clarence Thomas is still in his prime at 69.
Kennedy, a Reagan appointee, usually aligns with conservatives, but has long been the resident moderate on the Court. With the four liberals voting in lockstep, and the other four conservatives often doing the same, Kennedy has been the crucial swing vote.
Here are a few examples where he has cast the decisive vote with the liberal wing:
Abortion: In Planned Parenthood v. Casey, Kennedy joined Justice O’Conner’s opinion upholding Roe v. Wade. As recently as last year’s Scalia-less 5-3 decision in Whole Woman’s Health v. Hellerstedt, Kennedy has sided with the liberal wing of the Court on this issue. While Kennedy has been supportive of some abortion restrictions, there’s no indication that he would ever vote to overturn Roe.
Gay Marriage: In Obergefell v. Hodges, Kennedy authored the 5-4 opinion declaring there is a fundamental right to marry, and legalized gay marriage throughout the country.
Eminent Domain: In Kelo v. City of New London, Kennedy ruled with the liberal wing that eminent domain could be used to take land from one private owner to give to another private owner for the purpose of economic development.
None of these examples are to disparage the honorable service Kennedy continues to give the Court, country, and conservative movement. He has sided with conservatives on gun rights, free speech, campaign finance, capital punishment, affirmative action, and many others. But the fact remains that he is not a reliable voice on many issues conservatives hold dear.
Assuming Trump limits his next appointment to the list he circulated during his campaign, and with no filibuster to fear in the Senate, it is easy to envision a Justice Sykes or Justice Pryor joining a conservative majority with every Judge under the age of 70.
And so as happy as conservatives are with Justice Gorsuch taking the bench, the real celebration may still be yet to come.