The annual summer ritual has begun. For most Americans it involves a trip to the lake, a cookout or some fireworks. But in the world of political punditry it signals the beginning of the Supreme Court recess and the question of whether or not any of the justices are preparing to bail out on the job and go spend some well deserved time with their families. This year, according to CNN, the smart money is betting on swing justice Anthony Kennedy.
Justice Anthony Kennedy, the man who so often determines the outcome of the most controversial Supreme Court cases, is himself the center of brewing speculation.
Will he stay or will he go?
The rumors have swirled for months and the 80-year-old justice has done nothing either personally or though intermediaries to set the record straight on whether he will step down.
Helping drive the speculation, dozens of Kennedy’s former clerks are traveling to Washington to participate in a private clerk reunion that occurs regularly — and many of them wonder if it will be their last chance to meet with him while he is still on the bench.
Sources close to Kennedy say that he is seriously considering retirement, but they are unclear if it could occur as early as this term.
Aside from his age, it’s tough to say why all the focus is on Kennedy. We’re so used to hearing stories out of the New York Times, the Washington Post and CNN these days that are based on “anonymous sources” that nothing surprises us much anymore. But this is one case where CNN is coming right out and telling you that this particular report is based on … no sources at all. There’s not one report of Kennedy saying he’s seriously considering retiring on the record. Or off the record. Or of anyone else claiming to have heard him say it. He’s just one of the more likely suspects because of his age and the fact that the Notorious RBG has made it fairly clear that she’s running up the high score record on the Supreme Court pinball machine and will be putting some space between herself and the next possible challenger. She’s also the only one who has had any serious health concerns, and she has thankfully put them behind her by the Grace of God.
But whether it were to be Kennedy or Ginsburg who retired, the effect would be almost the same. Ginsburg would be more of seismic shock because she always votes with the liberal block. But at least you know what’s coming. Kennedy is the wildcard, as he’s proven on so many occasions. Fairly solid on Second Amendment issues, but a frequent disappointment to social conservatives. If he were to be replaced with somebody on Trump’s remaining short list from the campaign, many of the unpleasant surprises would be gone. (Which I brought up in detail earlier today in a column about property rights and his latest disappointment on that front.)
But we have the system that we have for better or worse. Kennedy earned his spot in that seat and the Constitution says he can keep it for as long as he likes. If he’s ready to go at his age, nobody could criticize him for it (though many on the Left will anyway) and all we can do is thank him for his service and wish him a happy retirement with his family. I think Gorsuch showed us that under the current rules the Democrats won’t be able to stop Trump’s next nominee. But until Kennedy actually says something himself it’s still business as usual.
Original article edited to correct the spelling Ruth Bader Ginsburg’s name.