Justice Kennedy, retire
His legacy on the court would be ensured
Nevada Sen. Dean Heller — a Republican facing a tough re-election challenge — ignited a firestorm among political junkies recently when Politico reported on some offthe-record remarks. “[Justice Anthony] Kennedy is going to retire around sometime early summer,” Mr. Heller told a private gathering. “Which I’m hoping will get our base a little motivated because right now they’re not very motivated. But I think a new Supreme Court justice will get them motivated.”
Whether or not Mr. Heller knows something the rest of us do not is unclear. Rumors of Justice Kennedy’s retirement have been circulating for over a year. But the Supreme Court operates under such a heavy blanket of secrecy that we will not know the justice’s intentions until he actually announces them.
Justice Kennedy’s retirement would be huge. The Supreme Court is now balanced precariously — five Republican-appointed justices to four Democratic-appointed ones. Justice Kennedy, named to the high court by President Ronald Reagan in 1987, is often considered the most moderate justice. He is also one of the oldest, at age 81; only Ruth Bader Ginsburg, 85, is older.
By the standards of today’s court, Justice Kennedy is certainly the swing vote, but in historical perspective he is quite conservative. He voted with the conservative justices against Obamacare in 2012. He voted with the conservatives on the matter of curtailing compulsory donations to public-sector unions. He is also particularly strong on federalism issues, with a particular interest in making sure that the federal government does not overstep its boundaries with the states.
Because Justice Kennedy sits in the middle of the nine-member bench, he has been perhaps its most influential justice over the last decade. As the deciding vote on many issues, he has been able to craft a unique jurisprudential legacy. This is why it would be smart for him to retire now. Despite his occasionally liberal decisions, such as his support for the nationalization of gay marriage, Justice Kennedy is, in the main, a conservative. If he hopes to secure the gains he has made, he should allow President Donald Trump toreplace him.
If Justice Kennedy were to retire this summer, as Mr. Heller predicted, Mr. Trump might very well appoint a former Kennedy clerk to the court as a replacement. Indeed, Mr. Trump has already done that — Justice Neil Gorsuch, whom Mr. Trump named to the highcourt last year, clerked for Justice Kennedy in 1994. And Mr. Trump’s short list for Supreme Court nominations includes a few other former Kennedy clerks — Judge Brett Kavanaugh of the Washington, D.C., Circuit Court and Judge Raymond Kethledge of the 6th U.S. Circuit Court. Judges Kavanaugh or Kethledge would probably shift the court to the right of where Justice Kennedy would like it, but it would remain more or less in the same ideological ballpark.
If, on the other hand, Justice Kennedy were to wait, and a Democratic president was able to replace him, the court would shift substantially to the left. While Justice Kennedy has agreed with the liberals on some high-profile cases, it is clear that their jurisprudential philosophy is substantially different from his own — on guns, free speech, campaign finance, the limits of federal authority, states’ rights and more. Moreover, liberals on the court would not be bashful about overturning Kennedy decisions they dislike. Contrast that with the more cautious Chief Justice John Roberts, who has a greater concern for continuity.
Justice Kennedy could roll the dice, betting that he can retire next year or the year after, and still have Mr. Trump replace him. Or maybe bet that he can last long enough for another Republican president. But those are risky propositions. Republicans are favored to keep the Senate in the upcoming midterm elections, but given Mr. Trump’s broad unpopularity, it is far from a guarantee. And it may be another eight to 12 years before another Republican president is elected. Can Justice Kennedy really hold on that long? The smart move is for Justice Kennedy to take this opportunity while it lasts, to step down and let Mr. Trump appoint a reasonable conservative to replace him. Let’s hope he does.