I have now heard arguments that the recent punts by Justice Kennedy and the Court in Masterpiece and gerrymandering mean he IS and that he IS NOT going to retire at the end of this term. Some thoughts /1
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There's Arlene's Flowers as a follow up to Masterpiece, and the North Carolina redistricting case as a follow up to Gill and Benisek. What's one more year of being the center of attention? /3
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On the other hand, Justice Kennedy turns 82 next month, and rumors that he'd like to retire have circulated for more than a year. If he couldn't figure out partisan gerrymandering after 14 years what would a 15th year do? /4
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Maybe he wants to leave the Court with less rancor so it will be easier to confirm a successor in this Trumpian partisan era. Or maybe he knows there's still a lot of rancor coming in cases like the Janus union case, and he was trying to cut down on rancor. /5
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Either way, he might want to leave the Court at a time of relative peace compared to all-out war. Besides that, there's a non-negligible chance thatSenate flips to the Democrats next year, and so this summer may be the last chance to retire and guarantee he can be replaced. /6
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because I suspect Ds will block a vote on any Trump nominee if they have a majority of at least a few seats (looking at you Joe Manchin as someone Ds couldn't count on here). /7
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And I can't stop thinking that the reason Sen. McConnell cancelled most of the Senate's recess in August is because he knows (or suspects) a SCOTUS nominee is coming. (Though it could be just to cram through more appeals court judges before the Senate may flip.) /8
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So in the end, I vacillate over whether we will see a Kennedy retirement in the next week or so. (Last year I thought a Thomas retirement more likely and I still think he could go if Kennedy stays.) /9
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Things will get very, very bad for the left when Kennedy is gone. Most people do not realize how much worse Supreme Court opinions can get for our democracy and politics. /end
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Another day’s reflection on Kennedy’s absolute refusal to commit in Gill in whether or not courts should police partisan gerrymandering after 14 years of ruminating is that Kennedy is done with the Court and will step down next week
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The silence there is deafening. If he couldn’t get off the pot after 14 years why wait for the chance at a 15 th? Gill was the moment if he wanted it. Teed up just for him
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And what’s with the 9 months between argument and decision in Gill? Likely Kennedy was either vascillating or signing on with Roberts on nonjusticiability or Kagan to police gerrymandering and then pulled back. Why would next term be a better time?
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