Kennedy Retiring from SCOTUS

Court's swing justice to step down, give Trump another appointment

Anthony M. Kennedy
Anthony M. Kennedy / Getty Images
June 27, 2018

Justice Anthony Kennedy announced Wednesday that he will retire from the Supreme Court, granting President Donald Trump the opportunity to permanently alter the balance of the court.

Kennedy will officially retire at the end of July, the Associated Press reports, ending 31 years of service that began with his appointment by President Ronald Reagan to fill the seat vacated by Associate Justice Lewis F. Powell. Kennedy told the press that he had already informed his colleagues and the president of his decision.

"For a member of the legal profession it is the highest of honors to serve on this Court. Please permit me by this letter to express my profound gratitude for having had the privilege to seek in each case how best to know, interpret, and defend the Constitution and the laws that must always conform to its mandates and promises," Kennedy wrote in his parting letter.

Kennedy's retirement leaves a void in the court, which would then be composed of four liberals and four conservatives. Kennedy has served as the court's "swing vote" in recent years, alternatingly joining his colleagues on the left and right in cases legalizing same-sex marriage, guaranteeing the right to keep and bear arms, and more. Kennedy finished the most recent term joining the majorities in NIFLA v. Becerra and Janus v. AFSCME in cases concerning crisis pregnancy centers and public sector unions.

That Kennedy has swung back and forth means that his departure is viewed by many conservatives as a major opportunity for the appointment of a staunch conservative, which could in turn massively alter the direction of future rulings.

"This is the moment conservative women have been waiting for—the chance to return justice and constitutional limits to the nation's highest court. This is the reason why they voted overwhelmingly for Donald J. Trump over Hillary Clinton," Penny Nance, president of Concerned Women for America, said.

All eyes now turn to the Oval Office, where Trump will have a second pick for the Supreme Court. His first, Neil Gorsuch, was sworn in in April of 2017, and has since proved a conservative lodestar, voting routinely with conservative colleague Clarence Thomas.

Speaking to the press Wednesday afternoon, just after Kennedy's announcement, Trump thanked Kennedy for his service and said that the search was now on for a replacement.

"We will begin our search for a new justice of the United States Supreme Court. That will begin immediately," he said.

The next nominee is likely to look a lot like Gorsuch, according to Leonard Leo, outside adviser to the president for judicial nominations. Leo serves in that capacity while on leave from his position as executive vice president of the Federalist Society, an influential conservative legal group which was central in the choice of Gorsuch.

"President Trump's list of potential nominees for this vacancy includes many of the very best judges in America, judges who have records of being fair and independent and applying the Constitution as it was written," Leo said in a release. "I expect the nominee to be like Justice Gorsuch, to demonstrate excellence in every respect, and to earn widespread support from the American people, and bipartisan support for confirmation in the Senate."

Prior to Gorsuch's nomination, Trump released an extensive list of possible nominees, a set which was eventually narrowed to Gorsuch and Judges Thomas Hardiman and William Pryor. It is unclear as of yet if either of these two men, or any of the other people named on Trump's initial list, are in the running to replace Kennedy.

Indeed, it is even as of yet unclear what the ideological lean of the eventual nominee will be. Thanks to the ending of the filibuster for Supreme Court nominees and a one-man majority, Senate Republicans can approve any Trump nominee along strictly partisan lines. Whether a nominee can rally the whole Republican caucus, however, remains to be seen.

Published under: Supreme Court