Rumors of Justice Anthony Kennedy’s possible retirement have shifted to 2018 after news of him telling applicants for the 2018 term that he is considering retirement began circulating in early July. Kennedy is the most senior Associate Justice on the Court and is often the swing vote on the Court’s 5-4 decisions, meaning his retirement would have significant ramifications on the direction of the Court for years to come. The opportunity to nominate a second justice, especially to replace the crucial swing vote, would be a boon to President Trump and the Republican Party in their efforts to shape a conservative leaning Supreme Court.
Kennedy was nominated by Ronald Regan and generally votes with the conservative wing of the Court but has drawn criticism from conservatives for his pro-gay rights and pro-choice rulings. Considering Trump’s promises and his choice of Gorsuch, it is highly likely that Kennedy’s replacement would vote further to the right. A second successful nomination could skew the court conservative for decades after taking into account that it is not unusual for modern justices to serve for more than 20 years.
The veracity of these rumors aside, it would be likely to see a Kennedy retirement going by the numbers. The Washington Post found that the average age of retirement for justices was 78.7. Kennedy is currently 80 with 29 years of service on the bench. With the exception of Stevens, Kennedy’s retirement would be in line with, if not later than, his cohorts’ departures from the Court in the last 20 years. It has become increasingly rare for justices to die in office, only two justices have died while serving since 1955 – William Rehnquist and Antonin Scalia. In contrast, there are currently three living retired justices: John Paul Stevens, Sandra Day O’Conner and David Souter.
Here is a quick look at retirements and deaths in the last 20 years:
Died February 13, 2016 at age 79 with 29 years of service on the bench.
John Paul Stevens
Retired June 29, 2010 at age 90 after 34 years of service on the bench. He was the second oldest serving justice in the history of the court and the third-longest serving justice in Supreme Court history.
Retired on June 29, 2009 at age 69 after 18 years of service on the bench.
Sandra Day O’Connor
Retired on February 3, 2006 at age 75 after 24 years of service on the bench.
Died September 3, 2005 as Chief Justice at age 80 with 33 years of service on the bench.