Well before most were discussing the possibility of Supreme Court Justice Anthony Kennedy retiring from the court we anticipated he would. In January we discussed the ramifications for Senator Schumer filibustering the nomination of Justice Neil Gorsuch to the court, and how politics was a land-mine if Schumer took that route.
The reasoning was simple. Justice Anthony Kennedy wants to retire, and Justice Kennedy holds institutional and traditional reverence for the court far beyond politics. Kennedy has previously showcased his disdain for politics and how it corrupts the court. Kennedy’s actual outlook is so steeped in judicial tradition he will defer, modify and delay his own personal interests if he senses a need to guard or protect the integrity of traditions within the court from the toxic infiltration of politics.
In all significant ways that matter, Justice Neil Gorsuch was/is more of an ideological replacement (high brow) for Kennedy than he was for Scalia, at least from the perspective of Kennedy. We anticipated, somewhat based on how Senator Schumer acquitted himself, that Kennedy would retire with a successful Gorsuch appointment.
JANUARY 31ST – […] Justice Kennedy is 80 years old and has openly stated he wants to retire. Kennedy views Gorsuch, his former clerk and protege’ as his replacement. Justice Kennedy sees Judge Gorsuch through a mirrored perspective.
With Gorsuch ideologically filling his legacy gap, it is reasonable to see Kennedy stepping down after the SCOTUS season this year. Most likely using the period of July/August 2017 recess for the term of replacement.
Justice Kennedy’s exit then provides President Trump with nominee #2. (LINK)
However, again accepting the institutional reverence held by Kennedy, the immigration and travel restrictions (Trump -vs- International Refugee Assistance Project), became a significant judicial consideration almost immediately following Gorsuch’s nomination announcement.
Kennedy would like to retire, but he would also most certainly revere hearing arguments and participating in the executive power (immigration) matter.
With all of that accepted, here’s an outside the box possibility. It might be entirely possible to see Kennedy remain on the court through September, October, November and December [arguments (17 days), conference (8 days)] and retire after the final conference schedule in December. If our review is correct, the most likely date would be Monday December 11th for such an announcement.
This could allow the court to front-load the more sensitive cases in the fall, Kennedy to participate. With Justice Kennedy exiting during the holiday recess and then court resuming (January 5th conference) with 8 justices.
Absent of the action above, Justice Kennedy appears committed for another year.