If Justice Anthony Kennedy retires, President Trump could fundamentally change the makeup of the Supreme Court.
By Joseph P. Williams | Staff Writer
Posted : May 3, 2017, at 2:53 p.m.
It’s been just 23 days since Justice Neil Gorsuch was sworn in as President Donald Trump’s first nominee to join the U.S. Supreme Court, reinstating a 5-4 conservative majority. Some conservatives, however, are eager for Trump to quickly make another nomination to the high court, even though there isn’t a vacancy – at least not yet.
Reports are swirling that Justice Anthony Kennedy, arguably the court’s most influential jurist and an occasional vote for its outnumbered liberals, is considering retirement as soon as late spring, perhaps with a nudge from Trump. The families of the president and the justice socialize with one another, and Trump reportedly has had back-channel communications with Kennedy through their adult children.
Kennedy, 79, isn’t talking publicly about his plans, and Trump has said he doesn’t have any inside information, although recent interviews hint that another Supreme Court nomination is on his mind. If the president gets to replace Kennedy with a more reliable conservative it would reframe the court, anchor it on the right, and would likely put settled but highly-contentious social issues – abortion, affirmative action and Obamacare – back in play.
«I have heard the rumor,» says Jonathan Turley, a George Washington University law professor and Supreme Court analyst. «Justice Kennedy is one of the oldest justices on the court,» Turley says, and his age alone «would certainly give credence to such rumors. Only one person knows for sure, and he’s not speaking publicly.»
If Kennedy stepped down, «it would potentially be transformative for the court,» Turley says.
When Trump replaced the late Justice Antonin Scalia, a staunch conservative, with the like-minded Gorsuch, «it largely kept the balance of the court in place.» says Turley. «That would not be the situation with replacing Justice Kennedy [who has] time and again supplied the fifth vote for the majority in key decisions,» including the vote to legalize same-sex marriage and strike down a Texas student’s attempt to dismantle race-based college admissions policies.
Because of votes like those, Republicans have criticized Kennedy, and pined for a reliable conservative replacement, for years. Now, with Trump in office and GOP in control of the Senate, the scenario is far more realistic, even if Kennedy decides to stay on for awhile longer.
If he leaves right away, however, it could mean serious blowback for Senate Democrats – and that their risky move to help former President Barack Obama will have come back to haunt them.
In November 2013, former Senate Majority Leader Harry Reid, a Nevada Democrat, decided to eliminate the filibuster, a daring political gambit intended to stop minority Republicans from unilaterally blocking Obama’s federal court nominees – part of an escalating, decades-long, tit-for-tat battle over the judiciary.
While Reid kept the minority’s filibuster in place for important Supreme Court nominations, the Republican majority in March used Reid’s logic to serve up payback. They stripped angry Democrats of the right to block Gorsuch – or any of Trump’s future judicial nominees – even though Republicans made room for Gorsuch by blocking Obama from replacing Scalia, who died in February 2016.
«Democrats got very little for the removal of the filibuster, but they’re about to pay a great deal,» says Turley.
By disarming the opposition, Senate Majority Leader Mitch McConnell, a Kentucky Republican, virtually guaranteed Trump’s next Supreme Court nominee won’t need any Democratic votes to win confirmation. Analysts predict the president could have as many as three appointments in his first term – a rare chance for Republicans to pack the court with conservatives and create an implacable, 6-3 or 7-2 conservative majority that would last for generations.
Though rumors of an imminent Supreme Court retirement has been in the air for months, Trump triggered a new round of speculation when he told The Washington Times on Sunday he’s heard chatter about Kennedy possibly stepping down. If Kennedy leaves, Trump said, he’ll pick a replacement from the 21-member list given to him by the Heritage Foundation and the Federalist Society, two influential, deep-pocketed conservative think tanks. Gorsuch was also on that list.
«I have a lot of respect for Justice Kennedy, but I just don’t know» his plans, Trump told The Times.
Still, Senate Republicans haven’t been shy about contemplating whether Trump will get to fill multiple vacancies before leaving office. A wide range of influential figures on the right, including Senate Judiciary Chairman Charles Grassley, an Iowa Republican, and Sen. Ted Cruz, a Florida Republican, have said they believe the president will get that opportunity, but no one will speak openly about whether Kennedy is being encouraged to retire.
«Obviously, there are rumors – there are always rumors» but the decision to leave would be Kennedy’s alone, says Carrie Severino, chief counsel and policy director of Judicial Crisis Network, a conservative organization. JCN spent tens of millions of dollars on an advertising and lobbying campaign on behalf of Gorsuch just after Trump nominated him.
«President Trump has recently affirmed he is going to stick to the great list of judges he had developed» during the campaign, Severino says. «I think it’s wonderful news. It’s always good to have that transparency of knowing who the options are.»
Even if Trump does get to replace Kennedy with a staunch conservative, it wouldn’t necessarily mean the end of legal abortion, more erosion of the Voting Rights Act of 1965 or restrictive gun laws, Severino says.
«It’s gonna be hard to know what will happen to some of these cases,» she says. «What they say [during confirmation hearings] and what they might do in terms of overruling cases are two different things. I think we don’t know where a lot of justices stand on these cases,» including Chief Justice John Roberts, who voted Monday to uphold a housing-discrimination case in Miami.
But Caroline Fredrickson, president of the left-leaning American Constitution Society, says it’s unseemly and a mistake for conservatives to push Kennedy towards the exits.
«It’s similar to what happened when Barack Obama was president, and many people on the left put pressure on Justice Ruth Bader Ginsburg to retire,» Fredrickson says, adding that it undermines judicial independence and the constitutional separation of powers. «I didn’t think it was a good idea then, and I don’t think it’s a good idea now.»
If Kennedy steps down, however, conservatives shouldn’t necessarily wager that the Senate will grant Trump’s wish and confirm a far-right jurist to replace him.
«I think it’s going to be a very big challenge because members of the Senate – both Democrats and Republicans – continue to hang on to what’s left of the exceptional role that the Senate plays and the ability to temper a hot-headed leader» like Trump, she says. At the same time, Republicans might lose the White House in the near future, several conservative justices would be nearing retirement age, and the shoe would be on the other political foot.
«There may be a Democrat in the president’s seat,» Fredrickson says. «If a number of other [justices] retire it may give the power back to the Democrats to dictate for a generation the direction of the Supreme Court.»