Hopes of a President Trump’s second appointment to the Supreme Court were dashed last week with the realization that Justice Anthony Kennedy would not be retiring, contrary to months of rumor.
But Kennedy – the first Supreme Court Justice to share a bench with one of his own clerks (Justice Neil Gorsuch) – may have a more consequential retirement than most imagined, and one which could prove a boon for the Republican Party.
According to Election Law Blog, which is run by UC Irvine School of Law Professor Rick Hasen, the controversial, swing-voting justice looks like he will be stepping down just before the 2018 midterm elections.
“He’ll be able to go out on a high note, deciding the fate of partisan gerrymandering, gay rights, and who knows what else,” writes Hasen, noting that Kennedy hasn’t hired any clerks for the 2018 session and is letting them know that he’s considering retirement.
Such a development could both prove incredibly beneficial for the Republican majority in Congress, but it would also raise questions about the prospects of the Republican agenda before then.
However, the other side of this coin is that such a political windfall would take pressure off Republican politicians to follow through on the laundry list of campaign promises that gave them control of the federal government last November.
One of the biggest worries for GOP candidates and strategists going into the midterms, which are typically very rough on incumbent majorities, was that there would be little to run on — aside from exploiting frustration with the mainstream media, that is.
This electoral predicament – though ameliorated by a weak Democrat Senate map and the Republican Party’s geographic stronghold everywhere but urban coastal areas – and current stagnant progress of the GOP Congress on health care, tax reform, and other promises would have only served to worsen the party’s prospects.
With the ability to drive out voters once again with the future of the Supreme Court hanging in the balance, the potential of a lifelong Republican appointment was one of the key factors that drove a deeply fractured Republican base to vote President Trump across the electoral finish line in the first place. And it could very well do so to preserve the party’s hold on the legislative branch in 2018.
This would put less of an imperative for Congress to deliver and reduce the need to accomplish anything robust on must-pass items, given the fact that members can cover for everything else during elections with the threat of giving Democrats any sway over the future of the judicial branch.
However, as Conservative Review’s Daniel Horowitz points out, while replacing Kennedy with a strict originalist would change the face of the court, Chief Justice Roberts’ continued leftward drift would serve to blunt even that potential Republican victory.