The Supreme Court is back at work starting today and there is ongoing speculation that Justice Anthony Kennedy, now 81, could retire after this term. Saturday Fox News reported on the months of rumors:
Sources close to Justice Anthony Kennedy say he has been seriously considering retirement and may not stay on the bench for Trump’s entire first term. Rumors were at a blustery pitch that he would step down last June, but the new term begins with the 81-year-old justice on board, his unique power base intact.
His influence as the court’s “swing” member — the deciding vote on a range of high-profile cases from gay marriage to immigration to abortion — has left his seat coveted by those on the right and left. Replacing him would launch an epic political fight, and could prove a boost to the Trump presidency itself.
CNN adds to that report today: “since last winter, sources have told CNN that Kennedy, 81, is considering retirement, although no one is sure when.” The story goes on to say progressives are concerned that date may be approaching and thinking about what it would mean for progressive priorities, especially Roe v. Wade:
“Justice Kennedy is one of the last things standing between progressive values rooted in the Constitution and the wrecking ball that is this erratic administration,” [Center for American Progress’ Michele] Jawando added. “Another Trump nominee would surely undo Kennedy’s powerful legacy that includes protecting abortion rights and recognizing marriage equality for same-sex couples. ”
While Kennedy has voted with conservatives on issues such as campaign finance, gun rights and voting rights, he’s delivered victories for liberals on issues concerning LGBT rights, abortion restrictions and affirmative action. The court has five Republican-appointed and four Democrat-appointed justices.
“I personally have no doubt that if Justice Kennedy or Justice Ginsburg or Justice Breyer is replaced by President Trump, there will be five votes to overrule Roe v. Wade and Roe v. Wade will be overruled,” constitutional scholar Erwin Chemerinsky said at an event hosted by Irvine School of Law last summer.
Last November, I wrote a post speculating that Roe could be overturned if Kennedy, Ginsburg or Breyer were to retire during Trump’s first term. That seems even more possible now that Justice Gorsuch is on the court and probably a safe vote against Roe. If Kennedy retires after this term (sometime next summer) it will set up the biggest congressional battle in recent years, with progressives doing anything and everything they can to prevent a vote until after the 2018 midterm elections. The map in those elections is heavily stacked against Democrats but no doubt they would prefer to enter the election with the survival of Roe as an issue.