No, Justice Anthony M. Kennedy Is Not Retiring Tomorrow – Above the Law

 In U.S.

Justice Anthony M. Kennedy

Ed. note: Please note the UPDATES I have added, and will continue to add, at the end of this story.

Look, I love legal gossip as much as — actually, way more than — the next guy. I entered the world of legal media through the back door of judicial gossip, writing a blog called Underneath Their Robes under the pseudonym of “Article III Groupie” (because gossiping about judges by night while appearing before them by day, as a federal prosecutor, is not a good look).

But to be a good gossip, you can’t just spread random rumors. You need to exercise discretion and discernment in what you disseminate — which brings me to the rampant rumors about Justice Anthony M. Kennedy’s supposedly imminent retirement, to be announced possibly as early as tomorrow.

I won’t bury the lede, so here it is: based on reports I’ve received from former AMK clerks who attended his law clerk reunion dinner last night, it is highly unlikely that Justice Kennedy will announce his retirement tomorrow.

But before getting into those reports, let me explain the origins of the latest speculation. Rumors of AMK retiring have been galloping around inside the Beltway for months now. On June 22, they gained momentum after Chris Hayes tweeted:

Matt Drudge and the Drudge Report soon joined in the wishful thinking fun:

Now, legal nerds and #appellatetwitter types might scoff at taking SCOTUS predictions from the likes of Hayes and Drudge. But Mark Sherman of the Associated Press and Ariane de Vogue of CNN, both highly respected Supreme Court correspondents, wrote stories yesterday flagging the speculation. From Sherman:

The biggest news of all [from the Supreme Court] would be if Justice Anthony Kennedy were to use the court’s last public session on Monday to announce his retirement.

To be sure, Kennedy has given no public sign that he will retire this year and give President Donald Trump his second high court pick in the first months of his administration…. But Kennedy turns 81 next month and has been on the court for nearly 30 years. Several of his former law clerks have said they think he is contemplating stepping down in the next year or so. Kennedy and his clerks were gathering over the weekend for a reunion that was pushed up a year and helped spark talk he might be leaving the court.

From de Vogue:

Will he stay or will he go? The rumors have swirled for months, and the 80-year-old justice has done nothing either personally or though intermediaries to set the record straight on whether he will step down.

Adding fuel to the fire, this morning top Trump adviser Kellyanne Conway said on ABC’s “This Week” that she could not confirm or deny the AMK retirement talk: “I will never reveal a conversation between a sitting justice and the president or the White House.”

Now, here’s my rebuttal. First, allow me to respectfully dissent from Ariane de Vogue’s comment that “the 80-year-old justice has done nothing either personally or though intermediaries to set the record straight.” Justice Kennedy, through the Court’s Public Information Office, previously has tried to dispel the rumors.

Last November, I offered a detailed discussion of the AMK retirement rumors, identifying three factors fueling the rumors: (1) moving his law clerk reunion up a year, a departure from the customary schedule of every five years; (2) not teaching in summer 2016 at McGeorge Law’s Summer Program in Salzburg, suggesting a possible slowdown for Justice and Mrs. Kennedy; and (3) hiring just one law clerk for the upcoming Term, October Term 2017. (Active justices get four clerks, while retired justices get one clerk, and in the past, some justices have tipped their hands by hiring fewer clerks than usual.)

If you’ve ever dealt with the Supreme Court Public Information Office, you know that the PIO likes to stay above the fray. It doesn’t chime in on every hiccup in the federal judiciary — it’s not Donald Trump’s Twitter feed, after all — and often it simply doesn’t comment on things. But the PIO did respond to my inquiry about Justice Kennedy, issuing this statement (presumably based on information received from the justice himself):

Justice Kennedy is in the process of hiring clerks for 2017. The Justice didn’t go to Salzburg this past summer because it conflicted with some plans with his family, but he is scheduled to return to teach there in 2017. The reunion is scheduled for the end of this Term because the Justice’s law clerks wanted to hold it during the Justice’s 80th year to mark his birthday.

Now, back when I shared this comment with my readers, I offered some caveats:

Is it possible that Justice Kennedy actually is planning to retire next year, but doesn’t want the world to know just yet? Sure. Is it possible that he isn’t currently planning to retire next year, but then changes his mind later? Certainly.

But, on balance, the PIO’s statement weighs in favor of AMK sticking around for a little while.

Second, look at his law clerk hiring. In January 2017, a few weeks after the Public Information Office’s statement, Justice Kennedy hired his fourth and final clerk for the next Term.

And wait, that’s not all. As I’ll mention in my next Supreme Court clerk hiring round-up, and as I’ve already tweeted via @SCOTUSambitions (which offers real-time SCOTUS clerk hiring news), Justice Kennedy recently hired one clerk for 2018: Clayton Kozinski (Yale 2017 / Kavanaugh), son of prominent Ninth Circuit judge Alex Kozinski (who clerked for Justice Kennedy back when he was Judge Kennedy of the Ninth Circuit, and who remains personally close to AMK).

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