Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Thursday, November 29, 2018

Justice Kennedy, On Retirement

The retirement of a Supreme Court Justice has become an event surrounded by speculation and spectacle. Justice Anthony Kennedy's retirement this summer lead to the most contentious confirmation process ever, so we can only brace ourselves for what the next retirement might bring. Justice Ruth Bader Ginsberg has faced much criticism for not stepping down during President Obama's tenure. Her supporters fear her trailblazing legacy may be in jeopardy if she is replaced by another justice who could be nominated by President Trump. A fight even more politicized than the last is likely in our future.

And that's why it was especially refreshing to hear Justice Kennedy's thoughts on his own retirement, and particularly the process of it. In a recent interview, Justice Kennedy said that he told none of colleagues of his decision until about an hour and a half before he went to the White House. He asked them not to say anything until he had his meeting with President Trump, who also was not given any advance warning from Kennedy. 

Justice Kennedy recognized his special place in history for his opinions that broke new ground, and were decidedly unpopular in some circles like Obergefell v. Hodges (same sex marriage), and Citizens United v. FEC (campaign finance). As to Obergefell, he remarked,

“I couldn’t hide,” Kennedy added. “The nature of injustice is you can’t see it in your own time. As I thought about it more and more, it seemed wrong to say over 100,000 adopted children of gay parents could not have their parents married. I struggled with it and wrote the case over the weekend. As you write, the reasons either compel themselves or not.”

And as for Citizens United, he noted,

“It’s true there’s a problem with money in politics, but I think we have to address it another way,” said Kennedy. He pointed to disclosure of the sources of the money. “Voters can vote against the candidate if they don’t like it.”

And mostly of his opinions, and those of the Court, he said,

“Our thinking is set forth in the opinions,” Kennedy responded. “We don’t go around later explaining. We hope the opinions are convincing.”

Aside from his written opinions, Justice Kennedy leaves another legacy of sorts: Both Justice Kavanaugh and Justice Gorsuch were clerks for Kennedy. Justice Gorsuch was the first justice to serve alongside his former boss. Kavanaugh now takes over Kennedy's seat, and with six of his former clerks also filling the billets of Supreme Court clerks this year, everyone should feel quite at home.

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