Quora Question: When Will Justice Kennedy Retire?

Suprerme Court Justice Anthony Kennedy
Illustration by Riccardo Vecchio

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Answer from William Murphy, Professor of American history:

The only person who can answer whether or not Justice Kennedy will retire before the 2018 mid-term elections, is Justice Kennedy.

Being a Supreme Court justice is a pretty sweet gig. They have clerks to do all their research and a lot of their writing, and they generally only work 2 to 4 days a week, for a few hours each day, with long stretches off including a break from late June to early October. Kennedy appears to be in good health, though he is, I believe 80 years old or will turn 80 this year. Oliver Wendell Holmes remained on the Court until he was 90. Kennedy may retire, or he may not.

Generally, when Supreme Court justices retire, they announce their intention to do so on the last day of the current court term, which occurs in late June. So, if Kennedy is going to retire in 2017, we will probably know within two months. If he does not, then the next point at which he (or any other justice) would announce an intent to retire would be June of 2018. It is certainly possible that a health issue could come up for one of the justices forcing them to retire during a term, though this is very rare. And of course it’s possible a justice will die in office, as Scalia did last year. But when they plan to retire, they usually do it at the end of a term in June (which gives the Senate and the President time to fill the seat before the Court returns to session in late September or early October).

It’s impossible to predict the likelihood of Kennedy, or any justice, actually retiring without knowing more private details about their health and their attitude toward their job. It is not exactly physically exhausting work; a justice who is generally healthy and whose mind remains sharp can easily fulfill their duties well into old age, and we have often seen this in the past. So if Kennedy is healthy and still enjoys the job, I’d expect him to stay for a while yet. If he’s feeling worn out and is concerned about the ideology of his replacement he might retire sooner rather than later. But who knows?

In the case of Justice Kennedy in particular, there’s an interesting point to consider. While he is generally a conservative on economic matters, he has in many respects been the leading voice on the court regarding the protection of rights for gay people and couples. He wrote several landmark opinions expanding gay rights, including Romer v Evans (1996) which overturned a Colorado law which denied gay people the right to bring claims under anti-discrimination laws; Lawrence v. Texas, (2003) which overturned anti-sodomy laws which had been used to criminalize gay sex; U.S. v. Windsor (2013) which struck down the provisions of the Defense of Marriage Act which justified the denial of government benefits to same-sex couples, and Obergefell v. Hodges (2015) which struck down state bans on same-sex marriage as unconstitutional.

Kennedy did not just vote with the majority on these cases, he personally authored the majority opinions for the Court in each of the cases I just listed. His judicial legacy will be defined in part by his lasting commitment to extending constitutional protections to gay individuals and couples.

So it would not be surprising if he considered, in planning his retirement, whether a judge who replaced him might undo the work he had done in this area of law. He is an economic conservative, so I doubt that he’d wait to retire until a Democrat is in the White House, but from his perspective it might be that the right mix of economic conservatism and social moderation might be found if he retired with a Republican president and Democratic Senate — the same combination that led to he himself being confirmed on the Court in 1988. So he might not rush to retire before the 2018 midterms.

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