There are various reports confirming that Justice Anthony Kennedy has told staff that he is seriously thinking of resigning and has notably not selected clerks for the October 2018 term. That raises some intriguing issues, including how such a vacancy would play in the midterm elections when there are 33 seats up for grabs in the United States Senate. The vacancy could be used to rally conservatives and liberals alike. As for Kennedy, it could be the difference between a lasting and short-lived legacy.
When Justice Anthony Kennedy retires, it may be the greatest proof of Woody Allen’s rule that 80 percent of success in life is just showing up. He may now show that the other 20 percent is just leaving. After a spasm of stories about his imminent retirement at the end of the last term, Kennedy is still shuffling around the corridors of the Supreme Court at age 80. Now, media sources report that Kennedy has not hired clerks for the October 2018 term and has told his staff that he is considering retiring, presumably in 2018. If so, Kennedy could again show that timing is everything.
One of the most impressive aspects of Kennedy’s tenure on the court has been a rather impeccable sense of timing. Time and time again Kennedy seemed to be in the right place at the right time to make history. Even in his retirement, the timing will maximize the impact of the decision. If Kennedy retired in 2017, President Trump would have likely prevailed in appointing a hard-right nominee and, in so doing, flipping the outcome in a host of important cases. However, there are important events in 2018 just a month after the start of the Supreme Court session: the midterm elections.
If Kennedy waits until after the midterm elections, the Senate could flip and guarantee a moderate replacement on the court. That would depend on whether he retired by tradition (though hardly an unbroken tradition) on the last day of this session. That would still give the Republican majority months to push through a more conservative nominee. If he were to wait until the term that starts in October 2018, he would all but guarantee not just a moderate but his own legacy in the area of gay rights.
Kennedy’s arrival on the national scene was the perfectly timed event in 1987. He was the “third on a match” nomination. Justice Lewis F. Powell Jr. had retired and President Reagan appointed Robert Bork, a judge on the D.C. Circuit best known for his role in Nixon’s “Saturday Night Massacre” when he fired Watergate special prosecutor Archibald Cox. Bork was a conservative intellectual, but his nomination took a nasty turn after Sen. Ted Kennedy (D-Mass.) went to the Senate floor to denounce what he described as “Robert Bork’s America” and declared “no justice is better than this injustice.”
The result was that Bork was “borked” — barred from confirmation in an organized political campaign of interest groups and political figures. While he never made it to the Supreme Court, his name would become a common noun, adjective and verb for nominees who are targeted by groups to discredit or demean their records.
After the Senate rejected Bork 58-42, Reagan nominated Judge Douglas Ginsburg from the D.C. Circuit. He seemed as safe a bet as a respected jurist with an accomplished resume. However, NPR’s Nina Totenberg then disclosed that Ginsburg had used marijuana as a student at Harvard and continued to do so as an assistant professor of law. As a result, Ginsburg withdrew his name from confirmation.
When Kennedy arrived, the Senate and the public were exhausted and Kennedy skated to confirmation on the basis that he was not Robert Bork. On top of that, Congress had released the Iran-Contra report accusing Reagan of responsibility in the scandal. Timing. It was like following Tanya Harding in the Olympic skating completion. Just doing a single spin without breaking a knee cap was good enough for gold. Kennedy secured the highest vote of any of the current members of the court: 97-0.
Kennedy then became a regular but not robotic conservative vote on the court. His entry on the court occurred at a time when it was sharply divided on ideological grounds. Kennedy — with Justice Sandra Day O’Connor — walked right into the gap and became a key swing vote, giving him a greatly enhanced role on the court. That role was most evident in 1992, when he joined O’Connor in the plurality decision in Planned Parenthood v. Casey, and in doing so, prevented the overturning of Roe v. Wade and the constitutional right to an abortion.
Kennedy would use his key position to forge the foundation for a right to dignity, particularly in the area of gay rights. In his historic opinion striking down the criminalization of homosexual relations in 2003 in Lawrence v. Texas, Kennedy overturned the Supreme Court’s infamous decision in Bowers v. Hardwick and extended due process protections to gay couples. When O’Connor left the court in 2005, Kennedy emerged as the sole swing vote. One such decision will likely prove his most lasting legacy: the recognition of the right to same-sex marriage in Obergefell v. Hodges in 2015.
Now Kennedy’s timing will again have a pronounced impact in his departure. He could give Trump a second seat on the Supreme Court after a campaign pledging to appoint “clockwork conservative” justices who will be both predictable and reliable in their votes. Ironically, Reagan hoped that Kennedy would produce a court with a bulwark of conservative justices, and he may finally achieve that goal with Kennedy’s departure — just three decades later.
The great irony is the Trump has never been viewed as a true conservative by the GOP base. Yet, he is about to achieve what Republican icon Ronald Reagan could never achieve: a solidly conservative Supreme Court. The replacement of Kennedy with an Alito-like nominee could shift the balance in a host of areas. The center of gravity of the court would move shift to Chief Justice John Roberts — a further step to the right.
The timing of this retirement could well cost Kennedy his most cherished legacy: his development of a liberty interest to protect personal dignity on issues like same-sex marriage. While it is highly unlikely that any newly formed majority would return to the Bowers v. Hardwick era and the criminalization of homosexual relations, it is equally unlikely that a Trump nominee would share his vision of the right underlying same-sex marriage. To make matters worse, the new swing vote — Justice Roberts — was in the dissent on the last two major opinions by Kennedy. While the court summarily reversed the Arkansas Supreme Court on the basis of Obergefell v. Hodges, four justices are on record as opposing the logic in that case.
Timing will, therefore, be key in the Senate. Just months ago, the Senate finally did away with the last of the filibuster rule in the fight over the confirmation of Neil Gorsuch. The Democrats had unwisely eliminated much of the rule to achieve relatively little under the Obama administration. The Republicans used that prior decision as justification in getting rid of the filibuster for Supreme Court nominees. Now, Democrats have little to use to demand a more moderate selection that might preserve aspects of Kennedy’s legacy. However, a departure after the midterm elections — with 33 Senate seats in the mix — could change the Senate itself. As always for Kennedy, it is just a matter of timing.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University, where he teaches a course on the Constitution and the Supreme Court.