By now, we can probably say that Justice Anthony Kennedy is not retiring from the U.S. Supreme Court. The word “probably” is apt because nothing is certain about the plans of this or any other Supreme Court justice when it comes to ending his or her service on the nation’s highest court.
But this week, the court wrapped up the current term, and Kennedy, who turns 81 in July, seems to have decided to stay on the job — at least for the coming term.
There could be a variety of reasons. As an institutional matter, he could well have concluded that there had been enough uncertainty and drama on the court after the death of Justice Antonin Scalia, and the vacancy that lasted for well over a year with Senate Republicans refusing to even consider President Obama’s nominee.
Kennedy may also have thought it best to ensure that there is a full complement of nine justices for at least a year. He could even have been put off by President Trump’s tweets about the judiciary.
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.
Kennedy’s position on the court is more than consequential. In the most hotly contested and closely divided cases, his vote often decides the outcome. With every passing day, it has become more clear that President Trump’s first Supreme Court nominee, Neil Gorsuch, is probably even more conservative than the justice he replaced, Antonin Scalia.
Ideological footprints in the sand
It is unusual to see a new justice’s ideological footprints so clearly in his first year or two on the high court. Indeed, most new justices, including those with long careers on the lower courts, are somewhat hesitant at first. They understand that the Supreme Court’s word is the final word, and that looking at issues from this new perspective is somewhat different from the perspective of a lower court judge, whose job is to carry out the mandates of a higher court.
But Justice Gorsuch seems both sure-footed and sure of himself and his views. Though he was confirmed in time to hear only the final two weeks of the term’s oral arguments, his votes and opinions in those cases — and others that the court has disposed of since he was sworn in — paint a vivid picture of a justice on the far right of the current Supreme Court bench.
Indeed, he voted 100 percent of the time with the court’s most conservative member, Clarence Thomas, according to SCOTUSblog.