Upon Further Review

Howard Bashman. Howard Bashman.

A little over two weeks ago, The New York Times published a lengthy editorial titled “Please Stay, Justice Kennedy. America Needs You.” The passionate editorial correctly explained that were President Donald J. Trump to replace Kennedy with a more dependable conservative on the U.S. Supreme Court, then various of Kennedy’s most notable rulings in the areas of abortion rights, affirmative action in college admissions, and equal rights for LGBTQ individuals would be at serious risk of being overruled.

To be sure, there are few if any jobs more meaningful than serving as one of the nine justices on the U.S. Supreme Court. In February of this year, Kennedy celebrated the 30th anniversary of his joining the court. And this July, he will turn 82 years old. I recently had the pleasure of seeing Kennedy take part in an investiture ceremony as another of his former law clerks, this time Stephanos Bibas, was formally sworn in as a U.S. Court of Appeals for the Third Circuit judge in Philadelphia. Kennedy seemed to be in great shape mentally and physically and was an active participant in the ceremony. Nevertheless, one thing that none of us can ever know for sure is how much longer we are destined to remain among the living.

Whether the end of this Supreme Court term or some other time in the future is the right time for Kennedy to retire from the court is something that only he can decide. But I would have to think that attempting to engineer the survival of the handful of decisions that would seemingly be the most at risk were he to retire now is one of those considerations that cannot play a predominant role in deciding when to retire.

It certainly is true that if President Trump were able to nominate a justice to replace Kennedy when Republicans control the U.S. Senate, which should remain the case at least through the end of 2018, certain of Kennedy’s most noteworthy decisions may be at risk in the future. But many others will be assured to remain good law. In November of this year, as happens every two years, voters will have the ability to choose who should hold one-third of the seats in the Senate. And although the Senate’s current composition is only 51-to-49 in favor of Republicans, this fall it will be quite difficult, but far from impossible, for Democrats to seize control of that part of Congress.

But let’s assume for purposes of argument that beginning in January 2019 Democrats and their affiliated independent senators hold 51 or more seats in the U.S. Senate. If Kennedy were to retire at that point, then presumably the Democratic majority would do the same thing that the Republican majority did after Justice Antonin Scalia died—it would hold Kennedy’s seat open until after the results of the November 2020 presidential general election were known. Whether Kennedy would prefer a scenario where his seat was held vacant for up to two years or more while the court lacked a majority to decide the most divisive cases is impossible to know for certain, but one might assume that any member of the court would prefer a functional institution to a dysfunctional one.

Moreover, a Supreme Court that was evenly divided 4-to-4 between liberal and conservative judges in the aftermath of a Kennedy retirement with a Democrat-controlled Senate that was unwilling to proceed with any Trump nominee would only serve to amplify the significance of Trump’s current successes in placing very conservative judges onto the intermediate U.S. Courts of Appeal. Although I cannot claim any particular insights into Kennedy’s retirement thought process, knowing his love of civics education, it is difficult to conceive that leaving the court with a long-term vacancy and unable to decide the most politically divisive cases is something that he would relish.

Timing one’s retirement from a federal judgeship in an attempt to allow a president with a similar philosophy to appoint one’s successor is difficult even at the court of appeals level. Take, for example, the case of Senior Third Circuit Judge Marjorie O. Rendell. She joined the Third Circuit in September 1997 thanks to a nomination from President William J. Clinton. Rendell proceeded to serve as an active judge for nearly 18 years before electing senior status in July 2015, at a time when President Barack Obama still had nearly a year and a half remaining in office. Yet when the aforementioned Trump nominee Judge Bibas joined the Third Circuit in November 2017, he filled the vacancy created when Rendell took senior status. Political considerations in the Senate prevented Obama from filling the Rendell vacancy, even though more than sufficient time existed for that to have occurred absent those considerations. This is not to suggest that Rendell decided when to take senior status based on who would appoint her successor. But if she did, it surely didn’t work as planned.

The November 2016 presidential general election reminded us, once again, that opinion polls don’t vote, people do. If voters stay home from the polls thinking that their vote isn’t necessary for their preferred candidate to prevail, then the candidate not expected to prevail might win. If Kennedy retires soon, while Trump can ensure the confirmation of a much more conservative jurist, some of the Kennedy rulings that would be most at risk, involving abortion and LGBTQ rights, could still be protected at the ballot box. Having liberal rights recognized legislatively, rather than judicially, would make them less subject to being taken away based on the changing composition of the Supreme Court. The fate of affirmative action programs, however, would be another matter, as that depends on the meaning of the Constitution, as to which judges are understood to have the last word.

Finally, if you listen carefully enough, you may hear that liberals have their own court-packing plan under consideration that would operate as payback for how Republicans were able to avoid seating Merrick Garland on the Supreme Court, keeping open Scalia’s seat to be filled by Neil Gorsuch. The thinking goes that should Democrats ever simultaneously control the presidency and both halves of Congress, they could enact legislation to increase the size of the Supreme Court and then fill the new seats with enough justices to give liberals a majority. That would certainly be a sight to behold and could risk being something that both sides sought to take advantage of over time. Maybe someday the Supreme Court would have more judges than the Ninth Circuit.

Whether Kennedy wants to retire now or at some other time is something that only he can decide for his own reasons. He cannot live or serve forever simply to ensure the continued survival of his past decisions, and his legacy is assured no matter when he decides to retire. At the same time, he undeniably has the ability to continue serving in one of the very best jobs any lawyer could ever hope to enjoy. Just as Gorsuch’s appointment to the U.S. Supreme Court ultimately resulted in one more Democratic justice on Colorado’s Supreme Court, whatever Kennedy decides will no doubt have favorable and unfavorable repercussions for both Democrats and Republicans for quite some time.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove and can be reached at 215-830-1458 and via email at hjb@hjbashman.com. You can access his appellate web log at http://howappealing.abovethelaw.com/ and via Twitter @howappealing.