No Kennedy Retirement Means Trump Won’t Get Another Supreme Court Justice… Yet

By Julia Glum

Monday was a busy day for the Supreme Court. On the justices’ final work day until fall, they issued rulings or otherwise made news in cases involving school choice, religious liberty, birth certificates and President Donald Trump’s travel ban.

But for some people watching the court, the most interesting development Monday was one that didn’t come at all: Justice Anthony Kennedy did not announce his retirement.

Speculation has been mounting for weeks that Kennedy is planning to step down soon after 29 years on the SCOTUS bench. Though justices are appointed for life, their average retirement age is about 79, according to the Washington Post. Kennedy is nearly 81.

Many of Kennedy’s law clerks have been eyeing the Ronald Reagan appointee with suspicion, with one tweeting, “Soon we’ll know if rumors of Kennedy’s retirement are accurate,” the Associated Press reported Saturday. Kennedy himself moved up a planned reunion for former staffers from 2018 to this weekend. At the event, he even made a joke about it, teasing that he had a big announcement—the bar was open.

However, on Monday, the Supreme Court’s press release webpage remained unchanged. Kennedy said nothing, and people took notice.

Kennedy’s non-announcement is important because it means Trump will not yet get to appoint another justice. The court is currently split, with Neil Gorsuch, John Roberts, Clarence Thomas and Samuel Alito leaning Republican and Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer siding with Democrats. Kennedy is sometimes a tiebreaker or a swing voter.

But if Trump is in charge of selecting Kennedy’s replacement, he’s likely to choose a conservative, triggering political chaos, giving the Supreme Court a definitive conservative slant and worrying liberal activists.

“As the court’s most important Justice—at the center of the institution’s ideological balance—Justice Kennedy’s ability to bridge the divide between left and right on critical issues such as the right to access abortion cannot be overstated,” Elizabeth Wydra, president of the Constitutional Accountability Center, told CNN. “Replacing Justice Kennedy with a Trump nominee would almost certainly sound the death knell for [1973 abortion rights case Roe v. Wade], just as candidate Trump promised during the 2016 campaign.”

Gorsuch, Trump’s first nominee, was only confirmed to the court in April. Gorsuch’s nomination was accompanied by a political firestorm: After Scalia died in February 2016, then-President Barack Obama picked Merrick Garland to replace him, but Senate Republicans blocked Garland from actually being considered for the job.

Should Kennedy retire soon, Trump has a list of names to draw from. During the campaign, he revealed a number of candidates he said he would consider nominating to the Supreme Court. Among them were Judge Thomas Hardiman, Judge Amul Thapar and Utah Senator Mike Lee.

BuzzFeed noted that justices can reveal their intent to step down whenever they want. But given Monday’s announcements about the case schedule for the next term, Kennedy’s decision might not come anytime soon. As Benjamin Wittes, the editor-in-chief of Lawfare Blog, tweeted Monday: “You don’t set up a show like this one and then not hang around for it.”

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