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Supreme Court Clerk Hiring Watch: Are Reports Of Justice Kennedy's Retirement Greatly Exaggerated?

Wow! Justice Kennedy has hired a full complement of four law clerks for the next Supreme Court Term.

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Supreme Court Clerk Hallway originalA few months ago, I heard an intriguing rumor: Justice Anthony M. Kennedy, the pivotal “swing vote” on the U.S. Supreme Court, would announce his retirement in early 2018. It wouldn’t be effective until the end of the current Term, around late June 2018. But Justice Kennedy was said to be planning on this early announcement to avoid a “Merrick Garland” situation — i.e., to get his successor confirmed well before the 2018 midterm elections. This would also have the added benefit of reducing the likelihood of SCOTUS becoming a big issue in the 2018 midterm elections.

It was a perfectly plausible rumor. Justice Kennedy has openly mused, and even joked about, how he’s seriously considering retirement in the not-too-distant future. And even though Justice Kennedy has disappointed the right (and the left) many times over the years, he still considers himself a Republican, and he wouldn’t have a huge problem with President Donald Trump appointing his successor.[1]

Well, it might be time to rethink that rumor. This week, Justice Kennedy finished hiring his full complement of four law clerks for October Term 2018. Wow!

The AMK hires for 2018-2019 are as follows:

1. Aimee Brown (Chicago 2014 / Griffith)
2. Alex Kazam (Yale 2016 / Kethledge / Sullivan (S.D.N.Y.))
3. Clayton Kozinski (Yale 2017 / Kavanaugh)
4. Conrad Scott (Yale 2015 / Watford / Garaufis (E.D.N.Y.))

Now, let me offer a caveat: hiring these clerks is no guarantee that Justice Kennedy will stick around until OT 2018. He can absolutely decide, whenever he wants, that he wants to leave the Court, whenever he wants. He’s a freaking Supreme Court justice; nobody tells him what to do.

And if he were to decide to retire before OT 2018, he wouldn’t have to fret too much about “orphaning” his hires. These high-powered legal eagles would likely find homes with other justices, per SCOTUS tradition. (And one of them could still clerk for the retired Justice Kennedy; retired justices get one clerk each, who assists the retired justice with various projects and gets “farmed out” to the chambers of an active justice too.)

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But still, the news of these AMK hires is notable. It doesn’t guarantee that Justice Kennedy is staying past the current Term, but it certainly suggests that he’s open to the possibility. And considering how confidently people have been talking about AMK’s very imminent retirement, even the slightest indication that he might be sticking around for longer is very newsworthy.

In any event, congratulations to Justice Kennedy’s latest hires. An offer to clerk for a justice of the United States Supreme Court is a Christmas present without peer!

P.S. This post is a precursor to a Supreme Court clerk hiring watch story that I expect to post in the next week or two. If you have any SCOTUS clerk hiring news that I have not yet broken — look at this post to see what I’ve already reported — please reach out by email or text (646-820-8477). Please include the words “SCOTUS Clerk Hiring” in your email or text message, perhaps as the subject line of your email or the first words of your text, because that’s how I locate these tips in my (overwhelmed) inbox. Thanks!

[1] I suspect that Justice Kennedy might have some personal distaste for certain aspects of President Trump, but has no problem with DJT’s Supreme Court shortlist — which includes a number of former AMK clerks. And remember that President Trump’s first SCOTUS nominee, Justice Neil M. Gorsuch, is a former AMK clerk too.

Earlier: Supreme Court Clerk Hiring Watch: To Know A Judge, Know Her Clerks

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DBL square headshotDavid Lat is editor at large and founding editor of Above the Law, as well as 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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