Rumors have been swirling for several months that Justice Anthony Kennedy is considering retiring in the near future. The associate Supreme Court justice is now 80 years old, and has been sitting on the Court since the Reagan administration. It appears that he himself has given indication that the time for retirement is approaching.
NPR reported on Saturday, July 1 that newly placed Justice Neil Gorsuch has scored a 100% conservative record so far by voting with Clarence Thomas in each of the decisions that have been handed down. Thomas is the Court’s most conservative justice, and Gorsuch appears to be following closely along that path (thank God).
Buried in that story is a little paragraph describing what we know about Justice Kennedy’s rumored retirement plans; for one he is not going to retire in the immediate future (as in, he won’t be stepping down this week or anything like that). But, what he is doing is announcing to those applying for clerkships that he is considering retiring in 2018.
NPR’s reporter wrote that it is possible that Kennedy wants to have a full year with all 9 justices on the Court before stepping down. That may be a possibility, especially since there was such a ruckus about the 8 member Court after the death of Justice Scalia. For now, Kennedy appears not to be going anywhere, for now that is.
But it is unlikely that Kennedy will remain on the court for the full four years of the Trump presidency. While he long ago hired his law clerks for the coming term, he has not done so for the following term (beginning Oct. 2018), and has let applicants for those positions know he is considering retirement.
As Rick Hasen notes at Election Law Blog, if Kennedy does retire in 2018, it would probably be before the midterm elections. This would give Republican voters yet another reason to head to the polls on election day, to ensure that the Republicans keep control of the Senate.
However, given the many debacles of the GOP leadership in recent days, that will be an uphill battle. Democrats are obviously furious about losing the election last year, but Republican voters are increasingly frustrated with their party for a pattern of inexplicable behavior. The party may have more than enough problems internally unless they get their act together fast.
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