Should Kennedy Ever Retire?

When one thinks of "Kennedy" this Memorial Day, there is an embarrassment of riches: JFK--whose birth centenary is today--, RFK, Ted Kennedy, MTV VJ Kennedy, and at Harvard Law School alone, Duncan, Randall, and David Kennedy. Plus, U.S. Supreme Court justice Anthony Kennedy. (The present author once spoke with Duncan Kennedy and joked that to have all the still-living males above--including Ted Kennedy at the time--, together in one room, would make an interesting party.)

But the Justice, a.k.a. "The Notorious A.M.K.", is the one getting the most focus these days, as to when he might retire and throw the Court to the winds of what the current Administration could foist upon the Nation. Should he retire? and thus foster that feared foisting?

I. Some Repubs Would Like "Judicial Prostitute" A.M.K. to Take a "Long Walk" Away

Many people, especially Republicans or self-called conservatives, are drooling at the prospect of Kennedy's vanishing from the Court, presumably since he might be replaced by someone more to their liking, and the Court could become their creature by a 5-4 majority. (Legend has it that many people on the right wing were not unhappy to see another Kennedy, JFK, vanish suddenly from the scene, since he too was often seen as a stumbling block...) A "conservative", Damien Schiff, even called Kennedy a "judicial prostitute", which is hardly conservative manners or language. ("Prostitute"...does that mean Kennedy wears nothing under his robe, or what?)

Would Kennedy's disappearance be good for America, though? The present author has disagreed hugely with that Justice at times, and sometimes agreed hugely, and sometimes half-and-half. But even if Kennedy is no demigod or flawless icon, consider who might replace him. Now that Supreme Court appointments have fallen into the gutter of politics and can't be filibustered any more, we might get another Roger Taney (slavery), Abe Fortas (corruption), or James Clark McReynolds (racist, anti-Semite, sexist, Lochnerite, all-around nasty) on the Court. Or if not that bad, close to it.

And this country is beginning to swirl down the hole, so to speak. A Congressman-elect allegedly beating up a journalist. The President thinking of gutting the First Amendment, not unlike the World War I-era action of Bethmann-Hollweg calling the Treaty of London guaranteeing Belgium's neutrality "a scrap of paper". With a different Court after Kennedy's departure, and all that heralds, could even worse things happen?

Some of this ground has been covered already, in Garrett Epps' Atlantic article Anthony Kennedy's Choice, and other pieces as well which plaintively ask for the Justice not to resign. But does Kennedy really care what a bunch of liberals think?

II. Kennedy Could Wait a Few More Years, and Still Be Replaced by a Republican President

In fact, one obvious inducement for Kennedy to retire before the Democrats recapture the White House (if they ever do), is for him to be replaced by the choice of a Republican president. However, this does not mean that he must retire immediately.

Even if, say, Donald John Trump is impeached, resigns, or goes crazy and gets 25th-Amendmented, Mike Pence would take his place. And if Pence is jailed or otherwise damaged by the Russia scandal, then another Republican would doubtlessly take his place. And so on. So, Kennedy could wait until at least, say, the next election year, 2020, and still have an excellent chance of being replaced by a Republican or Republican-friendly Justice.

True, right now Kennedy might be feeling the burden of age or illness or boredom, for all we know. But if he could wait at least until 2020 to retire, he might help ensure that the damage from the present Administration would be at least somewhat minimized. And at that point, if he then wants to stay after 2020 and try to be the longest-serving Justice of all time, that is understandable too.

So, there is a middle ground possible. Conservatives may want him out now, and liberals (or centrists, even) may not want him to retire, period (at least until a Oprah Winfrey/Chelsea Clinton ticket or such is occupying the White House). But taking a more cautious road by staying on for just a few more years, and then deciding whether to retire, is one nuanced and practical alternative for Kennedy.

III. Outdoing Bill Douglas; or, Setting a Marathon Record at the Court

How long might Kennedy have to stick around to be the longest-serving Justice, by the way? William O. Douglas served for 36 years, 211 days. By contrast, Kennedy has not yet served 30. Could he stand to serve for seven more years and break Douglas' record?

It's up to him, but, why not? Another notorious Justice (whose real first name may actually be "Joan", from what Wikipedia says!) is 84, while Kennedy is only 80. So if he hangs on for at least as long as she has, plus three more years, he will be the winner of the Court longevity trophy.

And why, some may ask, would he even consider resigning when Ginsburg, who is four years older, is staying on? If "Joan's" arc is toward longevity on the Court, why isn't Anthony's? Some people might want to call him a "quitter", or worse.

Finally, with the departure of Scalia, who "stayed in harness" until death, Kennedy has become the senior Justice in terms of time served. That is an enviable status that Kennedy might wish to enjoy for several years. Why quit when you're at the top? (Kennedy might not want to wait until death, as Scalia did; but again, Kennedy could likely perform his Court role for at least a few more years. John Paul Stevens served until 90, after all...)

IV. The Dead Kennedys, Memorial Day, "Liberty in Law", and Sacrificing for the Nation

On the note of "death" and "Kennedy", by the way: the present author has always wondered what Kennedy might think about the iconic punk rock band the Dead Kennedys (who come from Northern California, as does the Justice), a band with exciting song titles like "Kill the Poor", relevant to current Administration policies like cutting Medicaid.

The band's name is not meant to insult the (Boston) Kennedy family, but to reference the end of the American Dream, according to DK's first lead singer Jello Biafra. And the American dream seems in jeopardy these days, with the recent atrocities cited above (beat-up journalist etc.), and in Portland, Jeremy Christian--an interesting name, given the circumstances--stabbing to death two defenders of some Muslim women he was harassing. American life has more and more Nazi-reminiscent features these days.

On Memorial Day, one notes that America the Beautiful has, at the end of its second stanza, "Confirm thy soul in self-control,/Thy liberty in law!" Id. But various Americans, including Jeremy Christian, and some people very high in the Administration, seem to have lost their self-control--if they ever had any--, and respect for either liberty or law. (Trump's shoving aside the prime minister of Montenegro at a recent NATO meeting has bad symbolic overtones, to put it mildly.)

One definition of heroism is, doing something you have to but that you don't really want to. Memorial Day reminds us of heroes, including the ones who died for the Nation; and even if an aging Justice doesn't relish staying on the Court too much longer, he might feel obliged to stay on anyway, lest liberty and law take too much of a beating in his absence.

V. Conclusion: Judge Dredd, Justice Kennedy's Book, and Taking the "Long Walk" Out of the Court...or Not

Britain's famous Judge Dredd comic features the institution of the "Long Walk", an interesting form of judicial retirement:

The Long Walkis when a Judge leaves the city for the Cursed Earthor the Undercity to "bring law to the lawless".
Some aging Judges choose the Long Walk because they no longer meet the physical requirements to patrol Mega City One as a Street Judge....

Judge Dredd Wiki, "The Long Walk". By comparison, no one is asking Anthony Kennedy to wander into a wilderness, urban or otherwise, in a helmet and jumpsuit and administer justice with lethal firearms in a futuristic dystopia. So, retirement in our own real-life world may seem like a comfortable, even cushy, option for Kennedy. ...Then again, being a Justice is actually a pretty nice job compared to a lot of others. Leaving it too early could cause lasting regret.

But, this essay is somewhat neutral on what Kennedy should decide about his retirement. It's his life, and attempts to cajole him either way (toward taking the "Long Walk" out of Court right now, or not taking it yet) could actually backfire. However, one interesting factor is that for all his importance on the Court, Kennedy has yet to write a book (that this author is aware of), unlike colleagues Scalia, O'Connor, Ginsburg, etc., who have written one or even several books.

So when he eventually cracks, maybe, and finally pens a tome, what will it say? Will the final chapter include, "I got tired, retired younger than some of my peers on the Court, and in my ample leisure time watched the Court, Nation, and Constitution swirl down the drainpipe during my absence"? Or will he be able to record a more inspirational ending of his Court tenure? or even write the book when he is still on the Court in 2024, having beaten William O. Douglas? Let's see.

(Cross-posted, with edits, to Boyle's Laws)