The Volokh Conspiracy

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Supreme Court

Did the Alabama Special Election Increase the Odds of Justice Kennedy's Retirement?

If Anthony Kennedy would like to see his successor confirmed by the Senate, he might decide June 2018 is a good time to go.


Doug Jones' upset victory over Roy Moore in the Alabama Senate special election brings Senate Democrats one step closer to retaking control of the U.S. Senate. Once Jones is seated, Senate Republicans will only retain a narrow 51-49 majority in the chamber. This will undoubtedly make it even more difficult for Republicans to get anyhting done, and increase the chances that Democrats take over the Senate in the 2018 elections. But could this election result also affect the composition of the Supreme Court?

There has been rampant speculation over whether Justice Anthony Kennedy, the Supreme Court's swing justice, will retire next spring. Pepperdine's Derek Muller speculates that the Jones victory may have increased the odds. As Muller notes, if Democrats take the Senate, they are extremely unlikely to allow President Trump to fill a vacant Supreme Court seat. Ed Whelan concurs. This could bother Justice Kennedy. Whether or not Justice Kennedy likes the idea of President Trump picking his successor, he may like the idea of his seat remaining vacant for an extended period of time even less. This would mean the time is now.

I am also not sure Justice Kennedy would be particularly troubled by having the Trump Administration select his successor. Although Justice Kennedy is not as conservative as some of Trump's potential picks, I suspect he has been quite impressed by the overall caliber and qualifications of the President's appellate judicial nominations, including that of Neil Gorsuch, who worked for Kennedy on the Court. (District court nominations are another matter, but these are largely a product of negotiation and compromise with local Senators, who often elevate political or other considerations ahead of qualifications.) Justice Kennedy is also no doubt aware that several of his former clerks, including Judges Raymond Kethledge (Sixth Circuit) and Brett Kavanaugh (D.C. Circuit) are on the President's Supreme Court short-list.

So here's a prediction—a prediction worth no more than what it costs to access the VC on this paywall-free platform, but a prediction nonetheless. On June 26, 2018, Justice Kennedy announces the opinion for the Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission, striking a balance between free expression and non-discrimination principles. (June 26, it should be noted, was also the day upon which the Court announced its landmark gay-rights decisions in Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges—all of which Justice Kennedy authored.) Then, likely having satisifed no one but himself, Justice Kennedy will announce his retirement from the Court.

If I'm right, remember it. If I'm wrong, well, I can't exactly offer you your money back now can I?