Justice Kennedy Could Be Retiring, and That Means Trouble

Replacing conservative Supreme Court Justice Antonin Scalia was a battle that took well over a year to end. It spanned two presidential administrations and even resulted in Congress “going nuclear” and ending the ability for a minority party to filibuster a Supreme Court nominee.

The next attempt to replace a justice is far less likely to be such a drawn-out process — and, unfortunately for progressives, it may occur far sooner than we had hoped.

Rumors are beginning to swirl that Justice Anthony Kennedy, the court’s “moderate” swing vote, may be finally ready to step down from the bench.

“Kennedy has given no public indication of his plans, but he has drawn attention with a handful of semiprivate scheduling decisions,” reports Bloomberg News. “Perhaps most significantly, his next law clerk reunion will take place during the last weekend of June, offering the possibility that he will spring a piece of news on the gathering. The timing is noteworthy because previous Kennedy reunions took place every five years, and this one comes four years after the 2013 event. In addition, it’s taking place at the end of June, just as the term concludes, rather than in mid-June like previous reunions.”

At 80 years old, retirement talk shouldn’t be a surprise, but liberals can’t help but be alarmed by the future loss of Kennedy. The absence of the more centrist conservative, appointed by former President Ronald Reagan, would offer President Donald Trump the opportunity to appoint yet another far-right social conservative “constitutional originalist.” And that would solidify an unstoppable majority in future rulings.

“Kennedy has cast the decisive vote on high-profile cases for more than a decade, upholding abortion rights, ensuring campus affirmative action, and declaring the constitutionality of same-sex marriage,” CNN reports. “In recent years, he has moved to the left on racially inflected disputes, casting the key fifth vote for broad federal coverage against housing bias in 2015, and new constitutional protection against racism in jury deliberations just this March.”

Prior to Scalia’s death, even Kennedy’s seat couldn’t keep the court from trending away from equal rights and social justice for all. Notable cases such as the gutting of the Voting Rights Act still occurred under Kennedy’s watch, but the likelihood for this to become the standard is imminent, should the justice resign this summer.

Conservatives described Justice Neil Gorsuch’s appointment as “restoring” the balance of a court left askew with Scalia’s sudden death. Adding another rock-ribbed social conservative into the mix will tilt the court for decades to come.

While whispers of a summer retirement are increasing, it is highly possible that the Trump administration itself may have input on when Kennedy officially steps down. According to Politico, President Donald Trump and his family have set a “back channel” with the moderate justice, working through their children, who are acquaintances.

Whether Kennedy retires at the end of this session or decides to stay on a while longer, it could be a sign of the GOP’s worries about upcoming midterms. It’s unlikely the party has any interest in endangering their Senate majority by putting a Supreme Court seat up as a midterm campaign topic.

“University of Georgia School of Law professor Lori Ringhand said Republicans may be wary of defending an extremely conservative court nominee with the midterm congressional elections coming up in 2018, if another vacancy arises,” reports Newsweek. “‘It’s not clear it would be to the electoral advantage to Republicans to have a hotly contested Supreme Court nomination right before the midterms that highlighted a nominee’s extremely conservative positions on social issues that the majority of the public have actually accepted,’ Ringhand said.”

If Kennedy were to step down now, the GOP may be unwilling to confirm a new justice prior to Election Day 2018. Should they lose the Senate, they would be unable to confirm anyone until at least 2020 — and by then a new Democratic president could win the White House. It’s a dangerous gamble for Republicans, but then again, so was nominating Trump.

It is a terrifying thought that the current Supreme Court — now with Justice Neil Gorsuch confirmed — may in fact be the best case scenario for progressives. And that is why we must hope that these Kennedy retirement rumors are simply that — just rumors.

Photo Credit: Phil Roeder/Flickr

85 comments

Marie W
Marie W7 days ago

Thanks for sharing.

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Peggy B
Peggy B18 days ago

Dominic C..... I think you need to read the history of the Reagan years.

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Dominic C
Dominic C4 months ago

Justice is back with a vengeance, no more lib USA, the REAL USA - the REAGAN US!

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Amanda M
Amanda M5 months ago

Let's just hope that the rumors of Kennedy resigning are just that-rumors. The last thing this country needs is another Trump-nominated justice. If it's not a rumor, then be afraid. Be VERY afraid.

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Margie F
Margie F5 months ago

Surely it is up to him?

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Dan B
Dan Blossfeld5 months ago

Dot A.,
I agree. The two major political parties have become more divided, and are trying to divide the country similarly. Two candidates stepped this past election cycle to challenge the party elites. One, won his parties nomination (over the objections of the party), while the other was denied (over claims of party obstructionism). This shows that the American people are willing to elect non-party elites to office. This has not quite made its way down to the local level, but it just might in the elections to come. With all the hoopla surrounding the disapproval of both major party candidates, many have failed to acknowledge that the public disapproves of Congress to a much greater extent. Each party blames the other for whatever ails our country, yet neither proposes any meaningful solutions. Meanwhile, we keep going deeper in debt, as no one wants to take action that might offend any potential voters. The party bickering and failings may be their own undoing.

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Dot A
Dot A5 months ago

While it's completely understandable that our nation is experiencing frustration in this chaos of national political floundering, it is most essential that we remain calm and focused on taking care of our collective benefits, and not get overly stressed with the orchestrated confusion, of which the greedy grabbers will capitalize upon. There are cracks in our government that have never been mended, and now is the time for those who have the 'wherewithal' to buckle down to the business of problem solving. Otherwise, the spiral will continue downward, with calamity after calamity falling upon every spectrum of our 'still great in many ways' nation. I'm not a politician, but, I like to think that every ounce of my energy is another component in the American Way of doing things, For The People, By The People, and always with Care Towards All People. I fail to believe Trump can deliver on this premise, as he's never been an altruistic sort of character,... Ever! Our courts and judges are KEY to All American's Future.

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Lisa M
Lisa M5 months ago

Noted.

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Lisa M
Lisa M5 months ago

Noted.

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Philippa P
Philippa P5 months ago

Thanks.

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