John Roberts and the Supremes are back at work today. Could this be Justice Anthony Kennedy’s last term on the US Supreme Court?
The summer recess began with speculation that Kennedy will retire in 2018. This was mostly fueled by reports that Kennedy had expressed an uncertainty in staying past 2018 when interviewing applicants for clerks (I would hope the leakers did not get the job). Since those rumors broke, they have been mostly dispelled but as the most senior Justice at the age of 81, expectations have shifted from if to when.
Kennedy is known as the swing vote. Sometimes he is missed labeled as the deciding vote. Pundits have trouble figuring out his jurisprudence as he dances back and forth from the conservative and liberal blocs like the most popular girl at the ball. He has been accused of seeking the limelight and relishing the attention. He has been an interesting Justice to watch.
In the famous ObamaCare decision from 2012 (which is probably best listed as a 1-4-4 decision) he voted with conservatives Alito, Scalia, and Thomas to strike down the controversial law. On the Hobby Lobby decision, which for some reason infuriated liberals, he voted with the conservatives. He was appointed by Reagan. He must be a solid conservative.
But he is not. He wrote the opinion legalizing same-sex marriage. And when ObamaCare came back to the Supreme Court in 2015, Kennedy voted with Roberts and the four liberals to uphold the tax subsidies part of the law.
It is not his liberal leanings that have disappointed us most; it’s his consistent reliance on citing foreign government decisions in his opinions. This is a backward approach in that the United States leads the way for constitutional republics. I am not saying we are perfect, I am saying that all appropriate and applicable laws and cases to cite in a United States Supreme Court opinion should be exclusively from the United States. We have plenty of precedent, common law, and statues to suffice.
So will he or won’t he? And will he tip his hand one way or another this week? Will President Trump get to make two Supreme Court nominations in as many years? Can Hillary Clinton’s loss be anymore unbearable to the unhinged, die-in-the-wool liberal?
Generally speaking, retirements come at the end of the term without clear warning ahead of time, so it is doubtful any conclusive information will be offered early on. There are some fairly big cases on the docket that could give Justice Kennedy a kind-of grand finale and he does seem to enjoy the limelight, so if anyone is going to launch a yearlong farewell tour it would be him.