Joan Frawley Desmond, is the Register’s senior editor. She is an award-winning journalist widely published in Catholic, ecumenical and secular media. A graduate of the Pontifical John Paul II Institute for Studies of Marriage and Family, she lives with her family in California..
Rumors are flying that Justice Anthony Kennedy, 81, will tender his resignation by summer.
The closely watched “swing” vote on the ideologically divided high court, Kennedy is the subject of furious speculation by court watchers.
Republicans are eager to replace the California native with a more reliably conservative jurist, while Democrats seek to delay another Supreme Court confirmation fight as long as possible—or at least until after the midterm elections when the GOP could lose control of the Senate.
“Kennedy is going to retire around sometime early summer,” Sen. Dean Heller, R-Nev., contended earlier this month in Las Vegas, according to comments published by Politico.
“I think a new Supreme Court justice will get them motivated.”
Last month, the New York Times Editorial Board articulated liberal hopes that Kennedy will stay put as long as possible.
“Please don’t go,” the Times editorial pleaded.
“Sitting between the four liberal justices and the four conservatives, you are the most powerful member of the most powerful court in the country, as you have been for at least a decade.
“Your vote, more than that of any other justice, has delivered landmark legal victories for Americans of all political stripes, from gays and lesbians seeking equal rights to African-American college students seeking a better education to deep-pocketed corporations seeking to spend more money influencing politics.”
Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network, and a seasoned veteran of recent Supreme Court confirmation battles, told the Register that the jury was out, so to speak, on Kennedy’s retirement plans.
Asked to comment on reports that Justice Kennedy had hired clerks for the U.S. Supreme Court’s fall term (and so would likely be staying on for a another year), as well as unsubstantiated rumors that he had warned new hires he couldn’t “guarantee” whether he would remain in his post, Severino said she was reserving judgment.
“We are hearing the same rumors now that we heard at the same time last year,” she said.
“The only thing I can say on the record is that only Justice Kennedy knows when he will retire.”
Severino clerked for Justice Clarence Thomas, and is familiar with such matters. She appeared skeptical of the comments attributed to Kennedy regarding his clerks.
“Other justices have retired midterm before. and I am sure the justices [who remain on the high court] would take on the clerks,” said Severino.
After Justice Scalia’s death, his clerks “got hired by other justices. And even retired justices hire clerks.”
“Nothing short of a retirement announcement would be a red flag” for her.
But Severino had more to say about Kennedy’s legacy—a subject that will generate considerable debate among legal scholars after he finally does retire.
Kennedy wrote the 2015 majority 5-4 decision in Obergefell v. Hodges, which found a constitutional right to same-sex marriage. The following year, he sided again with the liberal wing in a 2016 case that overturned a Texas law restricting access to abortions.
But Kennedy, one of five Catholic justices, also wrote the majority opinion in Citizens United, the 2009 case that sparked a firestorm on Capitol Hill after the justices ruled that political spending is a form of protected speech, and that the government cannot bar corporations from funding political campaign ads. Five years later, he sided with Hobby Lobby in its groundbreaking 2014 legal challenge to the Health and Human Services contraceptive mandate.
While legal activists like Severino want to confirm jurist who seek to apply the law as written, and avoid legislating from the bench, she also emphasized that Kennedy had a strong record on some key issues.
“He has been very strong on First Amendment and federalism issues. Kennedy will frequently remind the court that federalism” means that the Constitution includes provisions that are designed by the Framers to “push back against federal government encroachment and protect liberty.”
In controversial cases like Citizens United, the when Kennedy has “stood up for First Amendment rights. Some other cases were not 5-4 decisions,” but Kennedy backed free speech and religious freedom.
At times, she said, he is “part of a broader coalition that is very strongly supportive of First Amendment rights.”
But Kennedy’s record on same-sex marriage has infuriated court watchers who expected a Republican president to nominate a reliable originalist or textualist, not a liberal activist.
Was President Reagan deceived when he nominated Kennedy, or did the culture change too quickly for a GOP president in the 1980s to anticipate a legal challenge to laws barring same-sex marriage?
In a 2015 story in the New York Times, Lawrence Tribe, the influential Harvard law professor, said that Kennedy had been flagged by liberal legal experts as sympathetic to “gay rights,” and Tribe had thus endorsed Kennedy’s nomination to the high court. Tribe’s remarks could not be confirmed, and it is not clear what the Reagan White House knew about Kennedy’s views on a variety of sensitive topics.
That said, Severino agreed that the “culture has changed dramatically” over the past three decades. It would have been “hard to predict” our present circumstances. This cultural acceleration occurred, in part, with the aid of key Supreme Court decisions, like Lawrence v. Texas, the 2003 case that overturned state anti-sodomy laws. The majority 6-3 opinion in that case was written by Kennedy.
“Anecdotally, people who knew Kennedy said he had a very solid conservative record and that is how he was viewed when nominated,” she said.
Kennedy’s uneven legacy has made subsequent Republican administrations even more cautious and meticulous about vetting Supreme Court nominees. For now, though, Trump, Capitol Hill and the New York Times must wait for Kennedy to confirm his retirement, and that could take a while.