KENNEDY HAS HIRED CLERKS FOR COURT’S NEXT TERM
“If the incumbent president is of the same party as the president who nominated the justice to the court, and if the incumbent president is in the first two years of a four-year presidential term,” the study found, “then the justice has odds of resignation that are about 2.6 times higher than when these two conditions are not met.”
Justices also take account of who controls the Senate and its internal rules.
“If I resign any time this year,” Justice Ruth Bader Ginsburg said in the fall of 2014, less than two years into President Barack Obama’s second term, “he could not successfully appoint anyone I would like to see in the court.”
“So anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided,” she said.
Artemus Ward, author of “Deciding to Leave: The Politics of Retirement From the United States Supreme Court,” said Kennedy found himself at a crucial crossroads. If he wants to resign under a Republican president in the first half of a presidential term, he must act.
“It’s now or never,” said Ward, a political scientist at Northern Illinois University. “It’s either this year or you wait until the next election.”
Party loyalty is likely to overcome more subtle concerns about judicial legacy, Ward said. Kennedy holds the crucial vote in many closely divided cases, and he has been drifting to the left. He has cast conservative votes in cases on campaign finance and gun rights but has lately voted with the court’s liberal wing on gay rights, abortion and affirmative action.
But Ward said Kennedy was likely to emulate Justice Byron R. White, who drifted to the right after his appointment by President John F. Kennedy, a Democrat. Even so, White said, it was fitting to retire under a Democratic president because he had been appointed by one. He stepped down not long after President Bill Clinton was elected and was replaced by Ginsburg, whose voting record has been considerably more liberal.
A new study on departures from the Supreme Court attempted to refine the conventional factors by considering political science data on justices’ voting patterns, involuntary departures and missed opportunities. It concluded that justices have not been particularly successful at ensuring that they would be replaced by like-minded successors.
Kennedy is in a ticklish spot, said the study’s author, Christine Kexel Chabot, who teaches at Loyola University Chicago School of Law. Kennedy is, Chabot wrote, a moderate conservative, and there is no reason to think a president of either party would replace him with someone similar. In all likelihood, she wrote, Trump would appoint a committed conservative like his first nominee, Justice Neil Gorsuch. In the few divided cases in which Kennedy and Gorsuch participated in the court’s last term, they agreed just 38 percent of the time. By contrast, Gorsuch agreed with Justice Clarence Thomas, the court’s most conservative member, 100 percent of the time.
Chabot also explored justices’ decisions to forgo opportunities to retire under like-minded presidents.
Of the 16 justices since 1954 who reached the age 65 and had served on the court for at least 18 years, Chabot found, nine passed up politically opportune retirements, risking having to leave the court for health reasons in less attractive circumstances.
Two of them — White and John Paul Stevens — retired later. Justice Elena Kagan replaced Stevens, and her voting record resembles his.
Another two, Ginsburg and Stephen Breyer, could have retired under Obama but continue to serve.
As for Kennedy, Chabot noted in an interview that he has hired law clerks for the term that starts in October. “I wouldn’t be surprised if he remains on the bench,” she said.