At 81 years old, the odds of Justice Kennedy, who was appointed by Republican President Reagan retiring this year, appear to be pretty high…
New York Times– For the second year in a row, rumors that Justice Anthony M. Kennedy may retire from the Supreme Court are sweeping Washington. He is 81, and he is doubtless weighing many factors in deciding whether to stay. Among them, experts in judicial behavior said, are the tug of party loyalty, the preservation of his judicial legacy and how close his retirement would be to a presidential election.
Justice Kennedy has long held the decisive vote in many of the Supreme Court’s most contested and consequential cases, and his retirement would give President Trump the opportunity to move the court sharply to the right. If Justice Kennedy steps down, the confirmation fight over his successor will be titanic.
Justices often try to retire when the president is of the same party as the one who appointed them. Justice Kennedy was appointed by President Ronald Reagan, a Republican. President Trump may be an unconventional Republican, but he is a Republican.
Justices also try to retire early in a president’s term, generally in the first two years, according to a 2010 study by Ross M. Stolzenberg, a demographer at the University of Chicago, and James T. Lindgren, a law professor at Northwestern. The study considered justices who served between 1789 and 2006.
“If the incumbent president is of the same party as the president who nominated the justice to the court, and if the incumbent president is in the first two years of a four-year presidential term,” the study found, “then the justice has odds of resignation that are about 2.6 times higher than when these two conditions are not met.”
Justices also take account of who controls the Senate and its internal rules.
Artemus Ward, the author of “Deciding to Leave: The Politics of Retirement From the United States Supreme Court,” said Justice Kennedy found himself at a crucial crossroads. If he wants to resign under a Republican president in the first half of a presidential term, he must act.
“It’s now or never,” said Mr. Ward, a political scientist at Northern Illinois University. “It’s either this year or you wait until the next election.”
Party loyalty is likely to overcome more subtle concerns about judicial legacy, Mr. Ward said. Justice Kennedy holds the crucial vote in many closely divided cases, and he has been drifting to the left. He has cast conservative votes in cases on campaign finance and gun rights but has lately voted with the court’s liberal wing on gay rights, abortion and affirmative action.