Anthony Kennedy, SCOTUS, Supreme Court

No, Justice Anthony M. Kennedy Is Not Retiring Tomorrow

Based on this weekend's reunion of his law clerks, reports of AMK's retirement are greatly exaggerated.

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Justice Anthony M. Kennedy

Ed. note: Please note the UPDATES I have added — and will continue to add — at the end of this story.

Look, I love legal gossip as much as — actually, way more than — the next guy. I entered the world of legal media through the back door of judicial gossip, writing a blog called Underneath Their Robes under the pseudonym of “Article III Groupie” (because gossiping about judges by night while appearing before them by day, as a federal prosecutor, is not a good look).

But to be a good gossip, you can’t just spread random rumors. You need to exercise discretion and discernment in what you disseminate — which brings me to the rampant rumors about Justice Anthony M. Kennedy’s supposedly imminent retirement, to be announced possibly as early as tomorrow.

I won’t bury the lede, so here it is: based on reports I’ve received from former AMK clerks who attended his law clerk reunion dinner last night, it is highly unlikely that Justice Kennedy will announce his retirement tomorrow.

But before getting into those reports, let me explain the origins of the latest speculation. Rumors of AMK retiring have been galloping around inside the Beltway for months now. On June 22, they gained momentum after Chris Hayes tweeted:

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Matt Drudge and the Drudge Report soon joined in the wishful thinking fun:

Now, legal nerds and #appellatetwitter types might scoff at taking SCOTUS predictions from the likes of Hayes and Drudge. But Mark Sherman of the Associated Press and Ariane de Vogue of CNN, both highly respected Supreme Court correspondents, wrote stories yesterday flagging the speculation. From Sherman:

The biggest news of all [from the Supreme Court] would be if Justice Anthony Kennedy were to use the court’s last public session on Monday to announce his retirement.

To be sure, Kennedy has given no public sign that he will retire this year and give President Donald Trump his second high court pick in the first months of his administration…. But Kennedy turns 81 next month and has been on the court for nearly 30 years. Several of his former law clerks have said they think he is contemplating stepping down in the next year or so. Kennedy and his clerks were gathering over the weekend for a reunion that was pushed up a year and helped spark talk he might be leaving the court.

From de Vogue:

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Will he stay or will he go? The rumors have swirled for months, and the 80-year-old justice has done nothing either personally or though intermediaries to set the record straight on whether he will step down.

Adding fuel to the fire, this morning top Trump adviser Kellyanne Conway said on ABC’s “This Week” that she could not confirm or deny the AMK retirement talk: “I will never reveal a conversation between a sitting justice and the president or the White House.”

Now, here’s my rebuttal. First, allow me to respectfully dissent from Ariane de Vogue’s comment that “the 80-year-old justice has done nothing either personally or though intermediaries to set the record straight.” Justice Kennedy, through the Court’s Public Information Office, previously has tried to dispel the rumors.

Last November, I offered a detailed discussion of the AMK retirement rumors, identifying three factors fueling the rumors: (1) moving his law clerk reunion up a year, a departure from the customary schedule of every five years; (2) not teaching in summer 2016 at McGeorge Law’s Summer Program in Salzburg, suggesting a possible slowdown for Justice and Mrs. Kennedy; and (3) hiring just one law clerk for the upcoming Term, October Term 2017. (Active justices get four clerks, while retired justices get one clerk, and in the past, some justices have tipped their hands by hiring fewer clerks than usual.)

If you’ve ever dealt with the Supreme Court Public Information Office, you know that the PIO likes to stay above the fray. It doesn’t chime in on every hiccup in the federal judiciary — it’s not Donald Trump’s Twitter feed, after all — and often it simply doesn’t comment on things. But the PIO did respond to my inquiry about Justice Kennedy, issuing this statement (presumably based on information received from the justice himself):

Justice Kennedy is in the process of hiring clerks for 2017. The Justice didn’t go to Salzburg this past summer because it conflicted with some plans with his family, but he is scheduled to return to teach there in 2017. The reunion is scheduled for the end of this Term because the Justice’s law clerks wanted to hold it during the Justice’s 80th year to mark his birthday.

Now, back when I shared this comment with my readers, I offered some caveats:

Is it possible that Justice Kennedy actually is planning to retire next year, but doesn’t want the world to know just yet? Sure. Is it possible that he isn’t currently planning to retire next year, but then changes his mind later? Certainly.

But, on balance, the PIO’s statement weighs in favor of AMK sticking around for a little while.

Second, look at his law clerk hiring. In January 2017, a few weeks after the Public Information Office’s statement, Justice Kennedy hired his fourth and final clerk for the next Term.

And wait, that’s not all. As I’ll mention in my next Supreme Court clerk hiring round-up, and as I’ve already tweeted via @SCOTUSambitions (which offers real-time SCOTUS clerk hiring news), Justice Kennedy recently hired one clerk for 2018: Clayton Kozinski (Yale 2017 / Kavanaugh), son of prominent Ninth Circuit judge Alex Kozinski (who clerked for Justice Kennedy back when he was Judge Kennedy of the Ninth Circuit, and who remains personally close to AMK).

Now, hiring clerks for 2017-2018 and 2018-2019 is not dispositive evidence that a justice will remain on the bench. There’s a nice tradition at the Court of justices picking up “orphaned” hires of their colleagues (which is what happened with Justice Antonin Scalia’s displaced clerks), so the clerks aren’t necessarily left in the lurch. But as a matter of collegiality and consideration — and whether or not you like his jurisprudence, Justice Kennedy is collegial and considerate — it’s not nice to impose upon your colleagues by hiring clerks you know will never work for you, putting pressure on these colleagues to sacrifice their own hiring discretion to scoop up your leftovers (because of SCOTUS tradition).

Finally, let’s turn to the dinner at the Kennedy law clerk reunion, which took place last night. As Kevin Daley noted over at the Daily Caller, Eliana Johnson of Politico and Lawrence Hurley of Reuters previously tweeted that AMK didn’t make a retirement announcement last night. I have more specifics of what he did say, which I’ll now share.

I reached out to several AMK clerks who were in attendance, and those who got back to me all opined that they don’t think he will announce his retirement tomorrow. Here’s why (in addition to their “spidey sense” from his demeanor).

First, Justice Kennedy generally made forward-looking rather than valedictory comments. For example, he talked about the three pairs of parent-child clerks he’s had — e.g., the Kozinskis — and how he hopes to have more in the future. This doesn’t sound like a justice who’s about to be slashing his clerk hiring to one a year (the allotment given to a retired justice).

Second, Justice Kennedy made a joke about all the retirement buzz. At the end of his remarks, he said something along these lines: “There has been a lot of speculation about… a certain announcement from me tonight. And that announcement is: the bar will remain open after the end of the formal program!”

Again — like the Supreme Court press office statement, and like the law clerk hiring — Justice Kennedy’s reunion remarks are not conclusive evidence of non-retirement. Indeed, a few of his former clerks have said — not in a mean way, just a matter-of-fact way — that AMK doesn’t care enough about his clerks to make the big announcement at the reunion. (Compare him to my former boss, Judge Diarmuid F. O’Scannlain of the Ninth Circuit, who announced his move to senior status at his law clerk reunion — right around the same time he told his colleagues on the bench, and in advance of the first news reports.)

Let’s not mince words: as the so-called “swing justice” on the Supreme Court, Justice Kennedy is one of the most powerful people in the world, and nobody puts AMK in the corner. As both liberals and conservatives have discovered to their dismay over the years, he swings his gavel every which way. Trying to predict AMK’s actions is almost as challenging as, well, trying to predict the actions of the man who might appoint his successor. As one of my sources said, “I’d be shocked if he retired this Term after last night — but it wouldn’t be the first time he’s surprised me!”

Truth be told, I would not be surprised if even Justice Kennedy himself hasn’t fully made up his mind (as another source of mine suggested to me). I would not be surprised if AMK has already drafted his letter to President Donald Trump, and if and when the spirit moves the justice, he’ll date it, print it, sign it, and have his chambers aide walk it over to 1600 Pennsylvania Avenue. Kennedy, OUT!

Liberals should hope and pray that the justice wakes up in a good mood tomorrow morning. Despite progressives’ issues with AMK — cough cough, Citizens United — he’s a heck of a lot better for them than any Trump pick, especially in a post-nuclear world.

So anything is possible tomorrow when it comes to Justice Kennedy — but in terms of what’s probable, it’s highly unlikely that Associate Justice Anthony M. Kennedy will announce his departure from the Supreme Court of the United States.

P.S. Despite these lawyerly caveats, I’m not betting both sides of the line; put me on record as saying AMK won’t retire tomorrow. If forced to assign a probability, I’d say there’s only a 10 percent chance of a retirement announcement. If Justice Kennedy does in fact retire, then yes, I’ll have a veritable three-egg omelet on my face.

P.P.S. In terms of my own self-interest, I’m fervently hoping that Justice Kennedy doesn’t retire tomorrow morning. I’m in meetings or speaking engagements pretty much all day on Monday — come see me tomorrow night if you’re in Minneapolis — so I’ll be majorly annoyed if AMK drops the retirement bomb on a day when I’m mostly offline.

UPDATE (6:40 p.m.): See also this earlier post by Adam Feldman, Why Justice Kennedy May Not Leave The Court Right Now, with which I agree.

Some observers have suggested that AMK might not want to step down next year for fear of making himself an issue for the 2018 midterm elections. But with all due respect to the Supreme Court — and this is coming from me, a huge judicial junkie — there will be many, many other issues for the midterms besides SCOTUS. And, from the Democrats’ point of view, the American people’s indifference to what happened (or didn’t happen) to the Supreme Court nomination of Chief Judge Merrick Garland shows that the Court is not a major voting issue (or if it is, it motivates conservatives more than it motivates liberals and moderates).

UPDATE (6:43 p.m.): A partial dissent from one source on the tone of Justice Kennedy’s speech: “there was a valedictory tone [to some of his comments], all the featured speakers were judges, and Justice Gorsuch was seated as ‘hand of the king’ [for the photo op]. Legacy-type stuff, in other words.”

UPDATE (7:29 p.m.): Another attendee had this interesting observation: “note the two judges who did not give speeches: [D.C. Circuit Judge Brett M.] Kavanaugh and [Sixth Circuit Judge Raymond M.] Kethledge. Significance? Maybe nothing, but they are the AMK clerks most likely to get the nod if he retires, and speaking at his final banquet might be awkward.”

So this point weighs in favor of a possible retirement (but not necessarily announced tomorrow, I’d argue, just a retirement during the Trump administration).

UPDATE (7:46 p.m.): A good question from a reader: “Isn’t AMK’s hiring of one clerk for OT 2018 consistent with him retiring? Retired Justices frequently hire just one clerk, correct?”

Answer: no, because Clayton Kozinski was a super-early hire for Justice Kennedy (but not surprising, given that AMK sometimes hires someone early from Judge Kozinski, to whom he’s very close). The justice typically hires in December or January for the following October Term. So if December 2017 or January 2018 rolls around and Clayton has no co-clerks, that would be a sign of possible retirement.

UPDATE (6/26/2017, 7:47 a.m.): As reported by Jess Bravin of the Wall Street Journal (via SCOTUSblog), Justice Kennedy’s dinner remarks on Saturday addressed the following themes:

The Supreme Court’s senior member–and frequently its deciding vote on cases involving gay rights, abortion access, capital punishment and other major issues–closed a private reunion of his law clerks with remarks touching on many of his longstanding concerns, according to several people who attended. He spoke of the impact of technological change, the need for civility in political discourse and the importance of public service plans.

If AMK is concerned about “civility in political discourse,” then he should not create a SCOTUS vacancy at a moment in our history that’s this turbulent and politically charged. Just imagine the political armageddon that will immediately ensue if Justice Kennedy reveals his retirement this morning; it will make the Garland and Gorsuch battles look like sandbox squabbling.

Sure, it’s possible that the state of our politics might not improve — but on the other hand, a lot can happen in a year. So even if I might raise my 10 percent estimate of a retirement announcement today to 20 or 30 percent (in light of some of the updates I’ve added here), I still think it’s far more likely that Justice Kennedy will retire next year as opposed to today.

UPDATE (6/26/2017, 11:18 a.m.): Please allow me to take my victory lap. As I predicted, Justice Kennedy did not announce his retirement yesterday.

Could Justice Kennedy announce his retirement later this summer — recall how Justice Sandra Day O’Connor announced her retirement on July 1, 2005, after the end of the Term — or later this year? It’s theoretically possible, but not probable. My guess is that AMK will not announce any retirement until around this time next year — i.e., the end of October Term 2017 — at the earliest.

Big cases, retirement rumors as Supreme Court nears finish [Associated Press]
Anthony Kennedy retirement watch at a fever pitch [CNN]
Conway won’t confirm Justice Kennedy retirement rumors [The Hill]
Why Justice Kennedy May Not Leave The Court Right Now [Empirical SCOTUS]

Earlier:

DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at [email protected].

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