Well, it must be Summer! As they say, April showers bring May flowers, and May flowers bring Supreme Court retirement rumors (also, Pilgrims). The Hill reports DC is predictably abuzz with chatter that Justice Anthony Kennedy (81), Reagan appointee and frequent swing vote on the Court, is considering stepping down soon. Before we begin frothing at the mouth, it should be said that nothing in the article amounts to an actual rumor from on high; most of the signposts cited are circumstantial and speculative.
That doesn’t make it any less newsworthy. The timing is uncommonly critical, and I’d submit that if he does indeed step down, it’ll be a bigger politi-quake than even the 2016 election itself. This of course isn’t a normal Supreme Court vacancy—it’s the tie-breaker both sides of the aisle have been waiting for across the country for a generation. With 4 (fairly) reliable liberal justices and 4 (mostly) reliable conservative justices, Kennedy has long been the single deciding vote on countless divisive cases. It has arguably made him the de facto most powerful individual in the US (in the world?). Roe, Heller, Citizens United...the list of close calls that would likely become easy-pickin’s if considered without a swing vote is long and radioactive. Kennedy knows this.
With the Senate in play this Fall, the gravity of Kennedy’s choice can’t be overstated. If he leaves, Trump can put another Gorsuch in easily, giving a real majority to the originalists’ camp. If he waits, and Democrats get control of the Senate, they can pull a McConnell and Trump will never get to fill the seat. Most likely, they’d be willing to wait until a Democratic President gets in the White House. No matter how long it takes. Politically, these are the highest stakes we will have ever seen in our lifetimes. Let’s be real here: all eyes are on Roe v Wade (technically, Casey is currently the relevant case law, but no one knows that, so we’ll use the conventional vernacular…). There’s not a bigger issue for Left or Right. If Trump replaces Kennedy, Roe is truly vulnerable for once, and states could be free to determine their own abortion laws across the board. We’ve never seen protests the likes of which would transpire if that happened. I’d board up my windows.
That said, the evidence cited in The Hill’s report is scant. SCOTUS has taken up a relatively low number of cases for this term (15), which could be read as reticence to engage certain hot-button issues until they know who Number 9 is gonna be. Sen. Dean Heller (R-Nev.) suggested in March Kennedy is retiring in early summer, but it’s not clear this was anything other than wishful thinking. More to the point, though clearly leaning moderate over the years, Kennedy is nevertheless a Republican, and could perhaps see this as his last chance to be replaced under a Republican POTUS and Senate.
On the other hand, he’s already appointed all four of his clerks for the next term; it would be highly unusual to do that if he’s leaving.
Truth be told, it may come down to what he wants out of the future Court, and we may not be able to divine this until he actually makes a move. Does he really want another Gorsuch, regardless of his own party affiliation? How strongly does he feel about Roe remaining intact? Is he deep-down hoping for a swing vote, middle-of-the-road appointee like himself, and if so, in what scenario does he see that playing out?
Whatever the case, there’s little doubt he is keenly aware of the pressure on him and the historic stakes at this particular moment. It’s probably not just a decision of fishing or golfing plans at this point for the man. Pray for him. Pray for all of them.