Justices consider legacy and loyalty in departure plans
Rumors sweeping capital that Kennedy, 81, will retire soon
WASHINGTON — Supreme Court justices say they do not act politically when they decide cases. But they freely admit to taking account of politics in deciding when to retire. Most justices, for instance, try to step down under politically like-minded presidents.
“That’s not 100 percent true,” Chief Justice William H. Rehnquist said in 1999, six years before he died, “but it certainly is true in more cases than not.”
Such political calculations are perfectly proper, he said, as “deciding when to step down from the court is not a judicial act.”
For the second year in a row, rumors that Justice Anthony M. Kennedy may retire from the Supreme Court are sweeping Washington. He is 81, and he is doubtless weighing many factors in deciding whether to stay. Among them, experts in judicial behavior said, are the tug of party loyalty, the preservation of his judicial legacy and how close his retirement would be to a presidential election.
Kennedy has long held the decisive vote in many of the Supreme Court’s most contested and consequential cases, and his retirement would give President Donald Trump the opportunity to move the court sharply to the right.
If Kennedy steps down, the confirmation fight over his successor will be titanic.
Justices often try to retire when the president is of the same party as the one who appointed them. Kennedy was appointed by President Ronald Reagan, a Republican. Trump may be an unconventional Republican, but he is a Republican.
Justices also try to retire early in a president’s term, generally in the first two years, according to a 2010 study by Ross M. Stolzenberg, a demographer at the University of Chicago, and James T. Lindgren, a law professor at Northwestern. The study considered justices who served between 1789 and 2006.