There was a lot of news at the U.S. Supreme Court today, including an initial ruling on Donald Trump’s travel ban and a major “religious liberty” decision. But perhaps the biggest news was the story that did not break: a much-rumored retirement announcement from Justice Anthony Kennedy. The 80-year-old jurist did not make any announcement this weekend at a much-discussed reunion of his law clerks (the timing of which fed the retirement rumors), and did not do so today, either, as the current Court term ended.
There is no rule, of course, that SCOTUS retirement announcements occur at any particular time. In 2005, Sandra Day O’Connor stepped down in mid-summer. But the odds have definitely gone down that Kennedy is planning anything other than putting the robes back on in the fall.
The frenzy over the possibility of a Kennedy retirement may strike some as a good example of media overkill or Beltway insularity. But it is hard to overestimate the impact of this event, had it occurred, and not just on the Supreme Court. Yes, Kennedy is very often the “swing vote” in an equally divided Court. So the opportunity for Donald Trump to replace him with a more reliable — and predictable — conservative could tilt constitutional law to the right on a broad range of issues.
But more specifically, a Kennedy retirement would create the possibility of a fifth vote on the Court to reverse or significantly modify Roe v. Wade and the constitutional right to abortion services. This Reagan-appointed justice has twice in his career — once in 1992 and again in 2016 — supplied a fifth vote to reject challenges to basic abortion rights. To anti-abortion activists (and to other cultural conservatives angry at his leading role in providing constitutional protection for same-sex marriage rights) he has become the living symbol of Republican judicial backstabbing. Being able to replace him with someone like Trump’s first SCOTUS appointment, Neil Gorsuch, would be huge for the right-to-life activists who constitute a critical part of the GOP coalition, and would accordingly increase their bond with Trump immensely. To put it another way, a fifth vote to overturn Roe could cover a multitude of Trump sins for serious conservatives, up to and including the failure to enact health-care and budget legislation.
For the moment, that’s not happening, which adds to the already intense pressure Team Trump and the congressional GOP are feeling over their shared agenda.