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Will He Stay Or Will He Go? On Justice Anthony M. Kennedy's Rumored Retirement From The Supreme Court

Do we know whether AMK is about to leave SCOTUS -- heck, does HE even know?

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‘Hmm, should I retire?’ (Justice Anthony M. Kennedy, via Getty Images)

It’s late May — time for seasonal allergies, summer associates, and rampant Supreme Court retirement speculation: “WWAMKD,” or “What Will Anthony M. Kennedy Do”?

Justice Kennedy, who turns 82 on July 23, is the longest-serving member of the U.S. Supreme Court, as well as the second-oldest, after Justice Ruth Bader Ginsburg, 85. And unlike the Notorious RBG — who has made clear that she’s not going anywhere anytime soon, hiring law clerks through 2020 — AMK has openly discussed (and even joked about) possibly retiring.

Last year, amid thunderous speculation to the contrary, I correctly predicted that Justice Kennedy wasn’t going to retire. This year, I… have no idea.

My gut tells me no, by maybe a 60-40 margin, but I don’t have much basis for that. Let’s look at some of the “evidence” under consideration.

First, as first reported in these pages, Justice Kennedy has hired four clerks for the next Term. But that’s not dispositive, as I’ve previously explained, since (1) he warned them he might retire and (2) there’s a SCOTUS tradition of trying to find “orphaned” clerks new homes.

Second, there has been a lot of chatter in D.C. circles about a possible AMK retirement, and in our nation’s leak-prone capital, today’s gossip is often tomorrow’s news (to quote Nick Denton of Gawker). But the Kennedy retirement rumors should be heavily discounted given the political interests of many of the folks spreading them — such as Senator Dean Heller (R-Nev.), who’s in a tough reelection fight and hoping to turn SCOTUS into an election issue, and Senator Chuck Grassley (R-Iowa), who as chair of the Senate Judiciary Committee would like to replace Justice Kennedy before the midterm elections (and a possible change in Senate control).

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To the extent that the Republican senators think they can turn Justice Kennedy’s retirement into a self-fulfilling prophecy, they’re probably wrong. I agree with Tony Mauro of the National Law Journal: “life-tenured Supreme Court justices don’t like to be told when to retire or move on.”

At the same time, I also don’t think that liberals can get AMK to stay with their impassioned entreaties either. What’s said of his jurisprudence can be said of his retirement plans: Justice Kennedy is his own person, and he doesn’t listen to partisan pleas.

(All this said, I do agree with Senator Mike Lee (R-Utah) — yes, a Republican politician, but also a former SCOTUS clerk and current SCOTUS shortlister — that Justice Kennedy “considers himself a Republican,” even if many Republicans don’t consider Kennedy one of them, and “with all things being equal, he would prefer to be replaced by a Republican President.” So I expect Justice Kennedy to retire sometime during President Trump’s first term, even if not this year.)

Third, Justice Kennedy’s wife, Mary Davis Kennedy, attended the final oral arguments of this Term, leading some to wonder whether the justice might have told his wife that she should show up at One First Street for the last oral arguments of his SCOTUS career. But as Professor Leah Litman, a former AMK clerk herself, noted on Twitter, Mrs. Kennedy “has attended a lot of arguments in big cases (and that day was the entry ban).”

Furthermore, as Mark Walsh reported on SCOTUSblog, the SCOTUS courtroom was packed to the gills with celebrities for the “travel ban” arguments, including four Supreme spouses — Mary Kennedy, Joanna Breyer, Martha-Ann Alito, and Louise Gorsuch. I wouldn’t be surprised if that day happened to be the monthly SCOTUS spouse lunch.

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Finally, here’s a factor that I think weighs (slightly) against a Kennedy retirement this Term: Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. Better known as the “gay-wedding cake” case, Masterpiece pits two of Justice Kennedy’s great loves against each other: the First Amendment, and the gays. No matter what he does, AMK will disappoint a constituency that usually adores him, whether it’s free-speech advocates or the LGBT community.

My guess is that Justice Kennedy will split the cake in Masterpiece, giving one slice to First Amendment advocates and one slice to the LGBT community. He’ll rule in favor of baker Jack Phillips — but on narrow grounds, and in an opinion offering a full-throated reaffirmation of his four “Big Gay Cases”: Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges.

So what does that mean for a possible AMK retirement? My guess is that Justice Kennedy would prefer to go out on a glorious rather than equivocal note, so maybe he’ll wait for a better Term to leave. (The best “mic drop” for Justice Kennedy probably would have been Obergefell, but I’m guessing he wasn’t ready to go back in 2015.)

As noted above, however, I think Masterpiece Cakeshop weighs against a Kennedy retirement only slightly. Why? Here’s a response to my argument: in some ways, Masterpiece Cakeshop would be the perfect parting note for Justice Kennedy. It would nicely embody his judicial legacy: winding up somewhere in the middle, not toeing any party line, and always calling cases as he sees them.

To sum up, I have no idea what Justice Kennedy will do — and it’s quite possible that neither does he. As I previously wrote, I wouldn’t be surprised if AMK has already drafted his letter to President Trump, to be signed and sent to the White House whenever the spirit moves the justice.

If you have some info or insight on this subject, please feel free to email me, subject line “AMK retirement.” Thanks.

No vacancy (yet): Liberals, conservatives prepare to battle for control of Supreme Court [USA Today]
Kennedy Wants A Republican President To Replace Him, Says Trump SCOTUS Short-Lister [Hot Air]
A “view” from the courtroom: An audience of luminaries for the final argument of the term [SCOTUSblog]
Supreme Court Justices Don’t Like to Be Nudged Off the Bench [National Law Journal]
Please Stay, Justice Kennedy. America Needs You. [New York Times]

Earlier:

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 dlat@abovethelaw.com.

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