On Sunday, NPR’s Nina Totenberg dropped a GIANT buried in a story about new Justice Neil Gorsuch, as noted by Rick Hasen of Election Law Blog: Justice Anthony Kennedy will leave office before President Donald Trump does. Here’s what she wrote:
[I]t 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.
This is yuuuuge news, since unlike Justice Neil Gorsuch’s seat, which replaced Antonin Scalia’s, Anthony Kennedy’s seat is a swing seat. Kennedy has been the fifth vote on some of the most consequential Supreme Court cases, particularly on social issues: his singular legacy appears to be elevating LGBT issues to Constitutional status. His line of opinions in Romer v. Evans (1996), Lawrence v. Texas (2003), and Obergefell v. Hodges (2015) moved homosexual marriage from a fringe issue to a Constitutional right. He is widely expected to carve away at the heart of religious liberty in Masterpiece Cakeshop v. Colorado Civil Rights Commission next year – it would be a full-fledged shock if he didn’t argue that religious Americans participating in public business can be forced by government to violate their religious principles.
So, he’ll stick around for that decision.
But then he might walk.
Which creates a fascinating political dynamic, as Ed Morrissey has noted at HotAir:
Let’s say for argument’s sake that Kennedy decided to announce his retirement on the first Monday in October at the start of the new term. That would hand a powerful campaign argument to Republicans — and maybe to Democrats too, but only in states where they’re expected to win anyway.
In other words, if Kennedy retires before the election, he’ll hand Republicans another Scalia issue upon which to run, but only if Republicans hold the seat open as a political ploy. If Kennedy retires after the election, he’ll allow Republicans to use his seat as a way to get out votes without paying any political price.
The smart money is on Justice Kennedy announcing any intention to retire after the election cycle. That’s both because he’d like to be replaced by a “bipartisan” – read: Democratic Senate – consensus, so that his seat remains a swing seat rather than moving the court significantly to the right. But this does add tremendous fuel to the fire for Republicans, who must maintain the Senate majority to have any hope of swinging the court away from Kennedy’s volatility and toward a more stable conservative court with Chief Justice Roberts as the swing vote.