Tuesday, by his choice, is the last day of Justice Anthony M. Kennedy’s 30-year career on the Supreme Court. If retirement means having time to relish the successes of a working life, Kennedy will have much to remember.
The Justice leaves the bench after years of holding the single most influential vote, at least when the Court has split deeply – as it has often done on major cases.
His vote and his opinions created a revolution for gay rights, helped save Roe v. Wade, enhanced free expression, found new rights for children in trouble with the law, questioned the harshness of prison life, kept the Court most of the time from going to extremes, and – to the dismay of his conservative critics—kept the Constitution regularly up to date.
Only one other Justice among the nine Kennedy colleagues who left the bench ahead of him did so with a similar record of casting the decisive fifth vote. The other was Justice Sandra Day O’Connor, the previous “swing” Justice, who retired more than 12 years ago.
But if retiring means having to adjust to change, that always is profound for any Justice who voluntarily steps down. Whatever activity the retired Justice chooses, it will no longer be as one of a very elite nine people, occupying seats of enormous power as the final interpreter of what the Constitution means – unless the Constitution is amended to create a new meaning.
Kennedy, like some other retired Justices, has said he will now do some judging on lower federal courts. In doing so, he will be only one among hundreds – there are about 180 judges on the federal appeals courts, where Kennedy is likely to take temporary seats. And, like all of his new colleagues, Kennedy will no longer be assured of making decisions that are the last word.
By the Constitution’s design, there is only one Supreme Court, and all of those below it that have been created by Congress are known as “inferior” courts, although that never was meant as an insult; it is simply that anything a judge at that level does is potentially subject to being second-guessed at a higher level, by the nine Justices.
As the late Justice Robert H. Jackson wryly put it, the Supreme Court is “not final because we are infallible, but we are infallible because we are final.”
Once retired, a Justice cannot return to that bench, even to help out if the Court finds itself short-handed. The Court can function with eight Justices but is uncomfortable doing so.
Federal law permits a retired Justice to continue service in the lower federal judiciary, and most retired Justices do that on an appeals court rather than the federal trial courts, known as district courts. Retired Justices do not become regular members of an appeals court; they go on temporary assignments, made by Chief Justice John G. Roberts, Jr., as part of his duties as the head of the federal court system.
Federal appeals courts usually work in panels of three and focus on the legal issues in appealed cases, and each case requires at most only a fairly brief hearing with no need to assemble factual evidence, as single trial judges do in the district courts where trials can run on for weeks if not longer.
In retirement, Kennedy by law gets to keep his annual salary, $255,300. (In that sense, he will out-rank his new appellate colleagues, who currently are paid $215,400.) His continuing to do some judicial or court-related duties is a condition set by federal law for retaining his full salary, as long as he is healthy enough to continue.
One of his former colleagues, retired Justice David H. Souter, has helped decide hundreds of cases on federal appeals courts since he retired nine years ago. A number of those cases have been appealed to the Supreme Court with mixed results, according to a survey by the online legal news service, Scotusblog.
Retired Justice O’Connor also spent some time on appeals court panels but apparently is no longer doing so. However, she has been active in off-the-bench judicial activities, including efforts to increase public understanding – especially among children—of the Constitution and in working to end elections of state judges as a reform project.
Retired Justice John Paul Stevens, who left the bench eight years ago, has opted to use his time not on the bench but as a writer and public speaker on legal topics. He has written two books about his judicial experience and about ways in which he believes the Constitution should be amended. In March, he wrote a newspaper opinion column promoting his idea that the Second Amendment protection of gun rights should be repealed as a means of gun control.
Stevens’ writing has sometimes been quite controversial because he occasionally has appeared to be re-arguing cases in which he as a Justice was in dissent. For example, he wrote the main dissenting opinion when the Court ruled for the first time, ten years ago, that the Second Amendment protects an individual’s personal right to have a gun for self-defense.
Now 98 years old, Stevens appears to remain in good health. He occasionally can be seen sitting in the Justices’ courtroom, in a section reserved for the Justices’ personal guests, on days when major cases come up for hearings.
When Justice Kennedy completes his service on the Court Tuesday, he will perform no further duties in that capacity. Anything now on his desk will be passed to another Justice to handle. He will continue to have the assistance of a law clerk and will have chambers at the Court if he wishes.
One of the duties that a Justice has is to serve as a “Circuit Justice,” which means they act on emergency legal matters that reach the Court from one of the 13 federal judicial circuits. Kennedy’s has been the Ninth Circuit, which includes his native state, California. He was a member of the federal appeals court for that Circuit before President Ronald Reagan named him to the Supreme Court in February 1988.
On the Court, he took the seat formerly held by Justice Lewis F. Powell, Jr., who coincidentally had held the “swing” vote on the Court before Justice O’Connor did.
Kennedy was actually the third choice to succeed Powell. President Reagan’s first choice was federal appeals court judge Robert H. Bork, whose nomination was rejected by the Senate after one of the fiercest confirmation battles in the Court’s history. That dispute led to the creation of the words “Borked” and “Borking” as labels for an all-out publicity and lobbying campaign over a nominee to the Court.
Reagan’s second choice was federal appeals court judge Douglas H. Ginsburg, who withdrew his name after a controversy arose over reports of his use of marijuana as a college student and as a young college professor. He is still serving on the federal appeals court judge in Washington.
As Kennedy prepares to retire, a new controversy is building over President Trump’s nomination of one of Kennedy’s former Supreme Court clerks, federal appeals court judge Brett M. Kavanaugh, as the successor.
Kennedy has served for more than a year on the Court with another of his former law clerks, Justice Neil M. Gorsuch, who replaced the late Justice Antonin Scalia after the Senate Republican leadership kept the Scalia seat vacant until President Trump could make the nomination.
Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.