The rumor mill went into overdrive over the weekend and into Monday morning: Justice Anthony Kennedy would retire. Justice Anthony Kennedy would not retire.
Kennedy, hosting a reunion for his clerks on June 24, addressed the speculation: “There has been a lot of speculation about … a certain announcement from me tonight,” he said, according to the blog Above the Law. “And that announcement is: the bar will remain open after the end of the formal program!”
On Monday morning, with paper in hand, the justice emerged from the red velvet curtain behind the high court bench along with his colleagues. Ten o’clock sharp, as always. Today was the final decision day of the term. Now what was on that paper?
The final day of the Supreme Court term almost always brings some drama with it—a rumored or surprise retirement, a landmark decision. The focus on this Monday was on Kennedy and whether the court would say something about President Donald Trump’s travel ban. (It did.)
And sometimes on that final day, the justices’ faces telegraph how the last few weeks went behind the scenes. Who can forget Justice Stephen Breyer’s look of outrage as he read his dissent in the 2007 school desegregation decision or Chief Justice John Roberts Jr.’s clenched jaw as he, the majority author, listened? Or the sheer fatigue on many of their faces when the court announced the outcome of the first challenge to the Affordable Care Act?
On Monday, tourists filled most of the public seats behind the rail that separates them from seating for members of the Supreme Court bar. The visitors and their buses are all over Capitol Hill at this time of year. Only a smattering of lawyers showed up to take the bar seats, including end-of-term regular Arthur Spitzer, legal director of D.C.’s American Civil Liberties Union. Jordan Lorence of Alliance Defending Freedom sat there with colleagues awaiting the big church-state decision in Trinity Lutheran Church v. Comer.
Noel Francisco, still awaiting a U.S. Senate vote on his nomination as U.S. solicitor general, was in the bar audience. The acting solicitor general, Jeffrey Wall, took his traditional seat with members of his office at the lawyers’ table in front of the high court bench.
Some of the justices’ spouses usually show up for the final day, and this Monday was no different. Sitting in the justices’ guest seats to the right of the bench were Jane Roberts and the chief justice’s children; Breyer’s wife, Joanna; and Justice Clarence Thomas’ wife, Virginia.
Still, all eyes were on Kennedy who wore his usual somewhat stern, poker face that morning.
Thomas read a summary of the first opinion: Davila v. Davis, in which a 5-4 majority held that ineffective assistance of post-conviction counsel does not excuse the procedural default of ineffective assistance of appellate counsel claims. Kennedy then read a summary of a securities decision involving California’s largest public pension fund. Roberts read the majority opinion in Trinity while a relaxed Kennedy sipped from his mug and leaned back in his chair.
Because the justices read summaries of their opinions from junior to most senior justice (always the chief), it was evident with Roberts’ reading of Trinity Lutheran that at least one of three remaining cases would be reargued. Roberts announced a per curiam opinion vacating and remanding Hernandez v. Mesa, the border-shooting case. The court ordered rearguments in two immigration cases, Jennings v. Rodriguez and Sessions v. Dimaya.
Before gaveling in a recess until the first Monday in October, Roberts acknowledged two court employees who had recently retired and a new retirement. Reporters poised their pens—could this be the Kennedy announcement?
In what may have been a first in recent history, Roberts acknowledged the retirement of newsman Lyle Denniston after 69 years in journalism. Denniston’s career began at a small town newspaper in Nebraska. His 58 years covering the high court, Roberts noted, span many volumes of the U.S. Reports.
And then the justices were gone, until the first Monday in October.