The only person who really knows if Anthony Kennedy will retire from the Supreme Court this summer is Anthony Kennedy. But that hasn’t stopped some Republicans from trying to nudge him out the door. “I believe we’re going to have another Supreme Court justice this year,” Nevada Senator Dean Heller said in Las Vegas last week, according to audio obtained by Politico. “I think Kennedy’s going to retire sometime early summer. That being the case, Republicans are going to have the opportunity now to put another Supreme Court justice in place, which I’m hoping will get our base a little motivated.”
Heller can’t be blamed for wanting Kennedy to retire. As he acknowledged, the confirmation battle would give the senator a high-profile chance to burnish his conservative credentials as he fights to retain his Senate seat in November’s midterm elections. Replacing Kennedy with a justice more akin to Neil Gorsuch would also shift the court’s ideological makeup further to the right, a longstanding Republican policy goal. Precedents on abortion, LGBT rights, racial discrimination, and the scope of federal power would almost certainly be imperiled.
Heller’s remarks were heard by some as a declaration of fact, but as Politico noted, the senator was merely making a prediction. An ouroboros-like rumor of Kennedy’s imminent departure also spread through Washington last spring, nourished by Republicans like senators Ted Cruz and Chuck Grassley who repeated it without identifying its origins. President Donald Trump spoke on the campaign trail of filling three or four vacancies during his term, which is extremely unlikely absent a tragedy.
Kennedy hasn’t made any overt signals that he’s leaving. He hired four clerks in December for the upcoming term this fall, a move that doesn’t suggest an imminent departure. Those clerks would still work for the court if he left, so it’s not conclusive proof he’ll stay. But it tips the balance closer to the status quo. Either way, if Kennedy does decide to hang up his robe, the American public won’t know until he tells them at the end of the court’s term in June.