Anthony Kennedy Would Seriously Shake Up The Supreme Court If He Retired Now — Here's Why

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For at least the last several weeks, rumors that Supreme Court Justice Anthony Kennedy will retire by the end of the year have circulated through and around Washington, D.C. Kennedy hasn't made any formal announcements, but some experts are telling journalists that they think it's a very real possibility. If Kennedy were to do so, the Supreme Court's ideological bent would almost undoubtedly be shifted to favor conservatives.

Kennedy is 81 years old, and is currently rounding out his 30th year as a Supreme Court justice. If he were to leave the bench, it's not entirely clear how he would announce his resignation — his predecessors have taken many different routes when sharing that kind of news. According to The Hill, he could tender his resignation at the end of this term, he could signal to his former clerks that he intends to step down, or he might clue in Chief Justice John Roberts that he plans to leave soon, and then play it by ear.

Ian Samuel, a Climenko fellow and lecturer at Harvard Law School, who clerked for the late Justice Antonin Scalia, told The Hill that a possible retirement could explain why the court has only agreed to hear a little over a dozen cases in its next term.

“One possibility is they are not granting cases because they don’t know who their ninth member is going to be," Samuel told the political news outlet. "… You could imagine Kennedy telling the chief, 'I’d like to keep this between us, but I’d like to retire,' and the chief saying, 'Let’s see who Kennedy’s replacement is before we grant all these cases.'"

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Justice Kennedy and his theoretical replacement pose a particularly interesting quandary insofar as the court's dominant political ideology is concerned. Though appointed by a Republican, Kennedy's judicial decisions have historically been a bit of a wildcard. In the past he has opted to uphold Roe v. Wade, frequently decided in favor of gay rights, and backed habeas corpus for Guantanamo Bay detainees.

But while all of those decisions are and were undeniably favorable for American progressives, Kennedy has not always leaned so far to the ideological left. He also decided against limiting corporate campaign spending in the now-infamous Citizens United case and appears inclined to uphold President Trump's travel ban — two very clear moves landing on the right end of the political spectrum.

If Kennedy were to retire soon, Republicans would likely scramble to fill his seat before November, when a slew of highly-anticipated midterm elections are slated to take place. If Congress failed to do so in time, the ideology of Kennedy's theoretical replacement could depend on how many seats Democrats successfully flip. As of now, they are the minority party in both chambers.

But, not everyone is so convinced that Kennedy is considering leaving any time soon. University of Richmond School of Law professor Carl Tobias, in an interview with The Hill, pointed to the fact that Kennedy already seems to be preparing for his next term — that's to say that he's been hiring important staff members.

"I don’t think he would have hired all four clerks for next year if he was seriously entertaining stepping down," Tobias said. "I just don’t think it’s going to happen."

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However, the rumors were apparently serious enough to warrant an editorial from The New York Times, addressed to Kennedy, asking him to keep his post. They appealed to Kennedy's record, and frankly contended that much was at stake if Trump were allowed to select his replacement.

"To put it bluntly, did you spend a lifetime honoring and upholding the Constitution and the values of civility and decency in American public life only to have your replacement chosen by Donald Trump?" the Editorial Board wrote in April. They even evoked the Mueller probe, continuing:

Do you want to give your seat to a president whose campaign and administration are under criminal investigation, whose closest aides have been indicted or have pleaded guilty to federal crimes? A president with so little regard for or understanding of the role of the judiciary, the separation of powers and the rule of law?

As of now, there is no clear indication that Kennedy plans to leave this year. So at the moment, his future on the Supreme Court remains a guessing game.