Justice Anthony Kennedy. Credit: Diego M. Radzinschi/NLJ
Justice Anthony Kennedy, who has occupied the powerful center of an ideologically divided U.S. Supreme Court for more than a decade, announced on Wednesday he will retire, giving President Donald Trump the opportunity to cement a conservative majority on the court for years to come.
Kennedy's announcement came Wednesday afternoon after the court had recessed for the summer. In a letter to Trump, he said his retirement was effective July 31 and he would then assume senior status.
"For a member of the legal profession it is the highest of honors to serve on this court," Kennedy, 81, wrote in the letter, addressed to "My dear Mr. President." "Please permit me by this letter to express my profound gratitude for having had the privilege to seek in each case how best to know, interpret, and defend the Constitution and the laws that must always conform to its mandates and promises."
In a statement released by the court's public information office, Kennedy said: "It has been the greatest honor and privilege to serve our nation in the federal judiciary for 43 years, 30 of those years on the Supreme Court." He added that while his family was willing for him to continue to serve, his decision to step aside was based on his deep desire to spend more time with them. He said, too, that admiration for his colleagues on the court means that he will "retain warm ties with each of them in the years to come."
Filling Kennedy's seat likely will mobilize an enormous political battle not experienced since the Supreme Court nomination and defeat of Judge Robert Bork in 1987, a defeat that eventually led to Kennedy's nomination. The legal and political stakes are significant because Kennedy's vote has been central to the outcomes of heated challenges involving abortion, affirmative action, voting rights, gay and lesbian equality, the death penalty and religion.
The battle over replacing Kennedy, who turns 82 next month, will play out over the summer months and, almost assuredly, become a key part of the November midterm elections. Democratic advocates in recent months had begun ramping up their focus on making the judiciary a primary focus in the political realm.
Kennedy's wife was at the Supreme Court on Wednesday morning, the last day of the justices' term, and his retirement announcement was made public in the afternoon.
Trump's list of would-be Supreme Court candidates, which he began to craft while he was a candidate, include Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit; Diane Sykes of the Seventh Circuit; William Pryor of the Eleventh Circuit; and U.S. Sen. Mike Lee, R-Utah. Conservatives have salivated at the thought of replacing Kennedy with a stronger conservative, solidifying the Roberts bench's rightward leanings.
Kennedy became the so-called swing vote on the Roberts court after the retirement of Justice Sandra Day O'Connor in 2006. A conservative with a strong libertarian streak, he has been the critical fifth vote in the few, but significant victories won by the court's liberal wing that includes justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. This term, however, Kennedy did not join his liberal colleagues in more than a dozen 5-4 ruling.
Rumors of Kennedy's possible retirement have floated for months, and, earlier, almost immediately after the U.S. Senate confirmation of Trump's first high court nominee, Justice Neil Gorsuch, in April 2017.
Some politicians and others suggested that because Trump picked Gorsuch, and Gorsuch had clerked for Kennedy, the justice should feel "comfortable" leaving his legacy in the hands of Trump. There is little evidence, however, that Gorsuch shares Kennedy's views on the issues in which he has led a divided high court.
Kennedy was President Ronald Reagan's third choice to replace Justice Lewis Powell Jr., who retired in June 1987. After the Senate defeated the Bork nomination in October of that year, Reagan tapped Judge Douglas Ginsburg of the U.S. Court of Appeals for the D.C. Circuit, but Ginsburg withdrew his name in November after admitting to using marijuana. Four days later, Reagan turned to Kennedy who at the time had been sitting on the Ninth Circuit since 1975.
In a 2005 interview with the Academy of Achievement, Kennedy was asked why he thought he was chosen for the Supreme Court. He replied:
"I like to think that those who were interested in my appointment thought that I was devoted to the law, and that I would be fair. That's all that I ever ask of myself. That's all I ever try to hold myself out to be."
Kennedy sailed through the confirmation process in three days and was unanimously confirmed, 97-0, on Feb. 3, 1988. He is the longest-serving justice on the Roberts court.
