WASHINGTON – Justice Anthony Kennedy reclaimed his position as the man in the middle of the U.S. Supreme Court when he swore in Neil Gorsuch, his former law clerk, as the newest justice.
The question is whether Kennedy wants to keep that pivotal role in close decisions for longer than a few more months.
Long before Gorsuch took his oath of office Monday, speculation was swirling that Kennedy might retire at the end of the term. President Donald Trump’s aides are preparing for the prospect of a new nomination while liberals brace for what could be a seismic shift on the court.
Kennedy, 80, has been the court’s primary pivot point since 2006, generally aligning with the four conservatives on campaign finance and voting rights and with the four liberals on gay rights. By selecting Kennedy’s successor, Trump could finally create the five-member majority that legal conservatives have envisioned for decades — one that might overturn long-standing precedents including the 1973 Roe vs. Wade abortion rights ruling.
“Kennedy leaving and being replaced by a Trump pick will almost certainly move the court to the right and perhaps make the court the most conservative court we have had since the 1930s,” said Neal Devins, a William & Mary Law School professor who is co-writing a book on the court.
Kennedy has given no public indication of his plans, but he has drawn attention with semiprivate scheduling decisions. Perhaps most significantly, his next law clerk reunion will take place during the last weekend of June, offering the possibility that he will spring a piece of news on the gathering.
The timing is noteworthy because previous Kennedy reunions took place every five years, and this one comes four years after the 2013 event. In addition, it’s taking place at the end of June, just as the term concludes, rather than in mid-June like previous reunions.
Supreme Court spokeswoman Kathy Arberg said the late-June weekend was chosen “because it works best with the Justice’s schedule.”
In November, she told the blog abovethelaw.com that Kennedy’s law clerks wanted to hold the reunion at the end of this term to mark his 80th birthday, which was last July.
Kennedy also moved more slowly than he had in previous years to hire his law clerks. He has now hired a full slate of four clerks for the term that starts in October, Arberg said.
Justices typically align their retirement plans with the end of the term in late June, though the timing of the announcement itself varies. The two justices who retired during Barack Obama’s presidency, David Souter and John Paul Stevens, announced their plans a couple of months before the end of the term. Justice Sandra Day O’Connor waited until the last opinions were released in 2005.
One former Kennedy clerk said he thinks the justice will probably retire at the end of the term. Others say he may stay another year given the extraordinary power he wields. The former clerks declined to speak for attribution.
Kennedy is a 1988 Ronald Reagan appointee who got the nod after the president’s first two choices, Robert Bork and Douglas Ginsburg, failed to win confirmation. Bork lost a Senate vote and Ginsburg withdrew after the revelation that he had smoked marijuana while a professor at Harvard Law School.
Kennedy disappointed many of his backers in 1992, when he co-wrote an opinion reaffirming the constitutional right to abortion. He is a champion of gay rights who wrote the 2015 ruling that legalized same-sex marriage nationwide.
At the same time, he voted to overturn Obama’s health care law and wrote the 2010 Citizens United ruling, which opened the way for new campaign spending.
Republicans hold a 52-48 advantage in the Senate, so they could confirm the next Trump nominee without any Democratic support. Even so, Kennedy’s position in the court’s center means the confirmation fight could be even fiercer than the battle over Gorsuch.
“The campaign against a judicially conservative nominee to replace Justice Kennedy would be ferocious,” said Rick Garnett, a constitutional law professor at the University of Notre Dame’s law school. “Senators who are up for re-election in 2018 will almost certainly be unable to avoid well-funded and tireless efforts to elevate the political salience of their votes on the nominee.”
Kennedy is one of three justices 78 or older, along with Justices Ruth Bader Ginsburg and Stephen Breyer, two Democratic appointees seen as less likely to retire during Trump’s administration.