One week ago, the persistent rumor that Justice Anthony Kennedy’s retirement was imminent was put to rest when the 2016–2017 Supreme Court term ended with no announcement from the 80-year-old jurist. Now it’s back.
Rick Hasen of Election Law Blog noticed this new clue hiding in an NPR story on Justice Neil Gorsuch that was published on Saturday. Nina Totenberg reported:
But it is unlikely that Kennedy will remain on the court for the full four years of the Trump presidency. While he long ago hired his law clerks for the coming term, he has not done so for the following term (beginning Oct. 2018), and has let applicants for those positions know he is considering retirement.
Clerk hiring can offer clues about whether a justice is mulling retirement. Current justices get four clerks each and retired justices get one, so sometimes justices only hire one clerk if they don’t think they’ll finish out their term. Though, as Above the Law’s David Lat explained, that’s not a hard and fast rule:
Now, hiring clerks for 2017-2018 and 2018-2019 is not dispositive evidence that a justice will remain on the bench. There’s a nice tradition at the Court of justices picking up “orphaned” hires of their colleagues (which is what happened with Justice Antonin Scalia’s displaced clerks), so the clerks aren’t necessarily left in the lurch. But as a matter of collegiality and consideration — and whether or not you like his jurisprudence, Justice Kennedy is collegial and considerate — it’s not nice to impose upon your colleagues by hiring clerks you know will never work for you, putting pressure on these colleagues to sacrifice their own hiring discretion to scoop up your leftovers (because of SCOTUS tradition).
Justice Ruth Bader Ginsburg, who obviously does not want President Trump appointing her successor, has already selected her clerks through 2020. But as of March, there were plenty of other justices who, like Kennedy, had yet to make their hires for the term that starts in 2018.
But if Kennedy is telling prospective clerks that he might not be sticking around, that’s concerning news for liberals — and not only because he’ll be giving Donald Trump another Supreme Court appointment. As Rick Hasen notes, he’d be stepping down “right before the 2018 midterms, giving the Republican base reasons to turn out and keep the Senate with a Republican majority (already a strong possibility in 2018).”