Will Justice Anthony Kennedy Retire? Control Of The Supreme Court Hangs In The Balance

The Supreme Court’s term ended Monday and speculation is swirling around whether Justice Anthony Kennedy, 80, will retire. The Justice sparked the speculation by moving up by a year a reunion with his former clerks.

Kennedy made no announcement about retiring at the reunion dinner on Saturday, nor did he indicate how long he would stay in the role as the longest serving Justice on the current court. Kennedy made a joke at the end of the dinner saying that he had an announcement to make then declared that the bar was open according to the Wall Street Journal Sunday.

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Kennedy was appointed by Ronald Reagan in 1988 and has become the swing vote of the nine-member Supreme Court, siding on some cases with the conservative wing of judges, and on others with the liberals.

Replacing Kennedy with an even more conservative judge would be a huge win for President Donald Trump and would give conservative judges a 5-4 majority. Putting conservative judges on the bench was a campaign promise of the president’s and a major concern for many conservative voters.

Trump was already able to get one judge on the bench when the Senate approved his choice of Neil Gorsuch by a narrow margin. Gorsuch replaced conservative judge Antonin Scalia who died in 2016. Gorsuch once served as a clerk for Kennedy.

Choosing Supreme Court Justices is a fraught political process. Republican Senators refused to begin the appointment process for former President Barack Obama’s choice to replace Scalia, Merrick Garland, reasoning that it was too close to the election and that the next president should have their choice. When Trump put Gorsuch forward, the Republican-led Senate had to change their confirmation rules just to get him appointed.

Kennedy has been the deciding vote in a number of high-profile cases. In the 2015 case Obergefell v. Hodges, Kennedy was the swing vote in the 5-4 decision that legalized gay marriage. In a 1992 Planned Parenthood case, Kennedy ruled with the majority reaffirming the principles of Roe v. Wade. Kennedy sided with conservatives on the Citizens United case which struck down election spending limits, and on issues of gun control and voting rights.

Trump promised that he would do away with Roe v. Wade on the campaign trail and has a list of conservative judges he’d like to appoint in the event of a vacancy.

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"As the court's most important Justice -- at the center of the institution's ideological balance -- Justice Kennedy's ability to bridge the divide between left and right on critical issues such as the right to access abortion cannot be overstated," said Elizabeth Wydra, president of the Constitutional Accountability Center to CNN Monday. "Replacing Justice Kennedy with a Trump nominee would almost certainly sound the death knell for Roe, just as candidate Trump promised during the 2016 campaign."

The court announced a flurry of opinions on Monday including a case on the separation of church and state. The court also agreed to hear a case on Trump’s travel ban and lifted an injunction against it. Still, no word from Kennedy however, leaving conservatives hopeful and liberal fearful.