UPDATED 06/27/18, ON THE OCCASION OF KENNEDY’S RETIREMENT ANNOUNCEMENT
Law professor and blogger Tom Smith (The Right Coast) quotes from and comments on yet another speculative piece about the (hoped for) retirement of Justice Anthony Kennedy:
The Washington rumor mill is churning with speculation about whether Justice Anthony Kennedy will retire at the end of the Supreme Court’s term next month.
The rumors seem to pop up annually in recent years. But with Kennedy’s 30th year on the high court passing in February and the justice nearing 82, the whispers about his future seem to be growing louder.
But how will the country endure without its chief moral arbiter? At every turn, Justice Kennedy has been there to make the final, incoherent distinction between right and wrong, between popular and unpopular, between what strange and incomprehensible thing the Law seems to say and what the murk at the heart of his conscience demands, at least for now.
Somebody should write something about this — the making of uber-political decisions on the basis of law-like rhetoric, which everybody knows is just politics, but which everyone agrees should be cloaked as law, while still knowing it is politics. Maybe this is a good thing? Keeps the lid on and all that? But no one has practiced this craft (?), art (?), or rubbishy self-indulgence (?) more semi-artfully than Justice Kennedy. He’s the un-Bork, the un-Ginsburg. He’s what you get.
I couldn’t possibly have put it that well. Kennedy has been fairly consistent in his use of judicial power to undermine civilizing social norms and the rule of law. Although he came out on the correct and decisive side of some crucial issues in the waning days of his justiceship, he too eagerly strove for “balance” and too timidly took up the cause of liberty (e.g., Masterpiece Cakeshop).
There is a canard, which I have read many times during the past few years, that Supreme Court Justices tend to retire during the tenure of president who is of the same party as the president who nominated them. This is the kind of balderdash that becomes “knowledge” among reporters and pundits who can’t be bothered to look up the facts.
Well, I have looked up the facts, and here’s what they tell me about the 35 justices* who have resigned or retired since 1900:
- Slightly more than half of them (18) left office under a president of the same party as the president who nominated them.
- Nine others are Democrat appointees who retired with a Republican in the White House. The last of these was Thurgood Marshall, who was nominated by LBJ and retired 27 years ago, during the presidency of G.H.W. Bush. Marshall’s retirement was like a gift from heaven because it resulted in the nomination and (painful) confirmation of Clarence Thomas, a faithful constitutionalist.
- The remaining eight were Republican nominees who retired with a Democrat in the White House. Three of the last four justices to retire are in this category: Harry Blackmun (author of the infamous Roe v. Wade decision), nominated by Nixon and retired under Clinton; David Souter (another RINO), nominated by G.H.W. Bush and retired under Obama; and John Paul Stevens (the biggest RINO in captivity), nominated by Gerald Ford and retired under Obama.
It is poetic (pun intended) that Kennedy decided to retire during Trump’s presidency, so that he can be replaced by a constitutionalist in the mold of Alito, Thomas, or Gorsuch. I assume plausibly that Trump will in fact nominate someone in that mold.
Here’s the big picture, a plot of retirements by year and their effect on the nominal balance of party affiliations on the Supreme Court:
* Here’s the chronological list of retirements, which the name of each retiring justice, the name of the president who nominated him (and year of accession to the Court), the name of the president at the time of the justice’s retirement (and year of retirement), and the effect of the retirement on the nominal party alignment of the Court:
Charles Evans Hughes – Taft 1910 – Wilson 1916 (GOP to Dem)
John Hessin Clarke – Wilson 1916 – Harding 1922 (Dem to GOP)
William Rufus Day – T. Roosevelt 1903 – Harding 1922 (Same)
William Howard Taft – Harding 1921 – Hoover 1930 (Same)
Oliver Wendell Holmes Jr. – T. Roosevelt 1902 – Hoover 1932 (Same)
Willis Van Devanter – Taft 1911 – F. Roosevelt 1937 (GOP to Dem)
George Sutherland – Harding 1922 – F. Roosevelt 1938 (GOP to Dem)
Louis Dembitz Brandeis – Wilson 1916 – F. Roosevelt 1939 (Same)
James Clark McReynolds – Wilson 1941 – F. Roosevelt 1941 (Same)
Charles Evans Hughes – Hoover 1930 – F. Roosevelt 1941 (GOP to Dem)
James Francis Byrnes – F. Roosevelt 1941 – F. Roosevelt 1942 (Same)
Owen Josephus Roberts – Hoover 1930 – Truman 1945 (GOP to Dem)
Robert Houghwout Jackson – F. Roosevelt 1941 – Eisenhower 1954 (Dem to GOP)
Sherman Minton – Truman 1949 – Eisenhower 1956 (Dem to GOP)
Stanley Forman Reed – F. Roosevelt 1938 – Eisenhower 1957 (Dem to GOP)
Harold Hitz Burton – Truman 1945 – Eisenhower 1958 (Dem to GOP)
Felix Frankfurter – F. Roosevelt 1939 – Kennedy 1962 (Same)
Arthur Joseph Goldberg – Kennedy 1962 – L. Johnson 1965 (Same)
Thomas Campbell Clark – Truman 1949 – L. Johnson 1967 (Same)
Abraham Fortas – L. Johnson 1965 – Nixon 1969 (Dem to GOP)
Earl Warren – Eisenhower 1954 – Nixon 1969 (Same)
Hugo Lafayette Black – F. Roosevelt 1937 – Nixon 1971 (Dem to GOP)
John Marshall Harlan II – Eisenhower 1955 – Nixon 1971 (Same)
William Orville Douglas – F. Roosevelt 1939 – Ford 1975 (Dem to GOP)
Potter Stewart – Eisenhower 1959 – Reagan 1981 (Same)
Warren Earl Burger – Nixon 1969 – Reagan 1986 (Same)
Lewis Franklin Powell Jr. – Nixon 1972 – Reagan 1987 (Same)
William Joseph Brennan Jr. – Eisenhower 1957 – Bush I 1990 (Same)
Thurgood Marshall – L. Johnson 1967 – Bush I 1991 (Dem to GOP)
Byron Raymond White – Kennedy 1962 – Clinton 1993 (Same)
Harry Andrew Blackmun – Nixon 1970 – Clinton 1994 (GOP to Dem)
Sandra Day O’Connor – Reagan 1981 – Bush II 2006 (Same)
David Hackett Souter – Bush I 1990 – Obama 2009 (GOP to Dem)
John Paul Stevens – Ford 1975 – Obama 2010 (GOP to Dem)
Anthony McLeod Kennedy – Reagan 1988 – Trump 2018 (Same)
The list includes Charles Evans Hughes twice. He first joined the Court in 1910, and resigned in 1916 to run for the presidency as a Republican. Hughes was then nominated as chief justice in 1930, to succeed William Howard Taft. Taft was the only person to have served as President of the United States and Supreme Court justice.