No one but Kennedy knows his true plans, but few would be surprised if he announces his retirement. He will soon turn 82, close to the age when most modern Supreme Court justices have retired (83 is the Court’s current average retirement age). In addition, justices tend to retire during the first two years of a like-minded president’s term, according to an empirical study by Prof. Ross Stolzenberg and Prof. James Lindgren, “Retirement and Death in Office of U.S. Supreme Court Justices.” A moderate conservative, Kennedy was appointed by a Republican president, and Republicans currently hold the White House and Senate, which would seem to make this summer a logical time for Kennedy to step down. It is also noteworthy that he joined the Court in 1988, exactly 30 years ago, the kind of round number people often like for bringing careers to a close.
The Kennedy retirement speculation intensified in the last few days thanks to two interesting pronouncements by Senator Charles Grassley of Iowa, the chairman of the Senate Judiciary Committee.
Grassley: Retire Now, Not Later
Late last week Sen. Grassley declared that any justice considering retirement should make the announcement “now or within two or three weeks because we’ve got to get this done before the election.” Then, over the weekend, Grassley warned that if any justice retires in 2020, the Senate should leave the seat open pending the results of the presidential election, along the same lines as Merrick Garland’s blockaded nomination in 2016.
Grassley clearly wants Kennedy to retire immediately rather than a year or two from now. It is not entirely clear why the senator is in such a hurry. After all, Republicans will hold the White House for at least the next two and a half years, and the 2018 Senate map is highly unfavorable for the Democrats, making it quite likely the GOP will maintain its Senate majority. So why is Grassley pushing for a Kennedy retirement in 2018?
The answer may simply be caution on Grassley’s part. There is always a chance—however slim—that Democrats might surprise the political analysts and win control of the Senate in the November midterm elections. A Kennedy retirement in 2018 would eliminate the element of chance by ensuring that a Republican Senate will confirm his successor.
The Iowa Fetal Heartbeat Bill
But another reason why Grassley might want Kennedy to retire in the next few weeks could be an abortion law recently enacted here in Iowa, Grassley’s home state. Two weeks ago Iowa Governor Kim Reynolds signed into law the most restrictive abortion bill in the country, banning most abortions after a fetal heartbeat is detected. The new Iowa law—which includes very limited exceptions for rape, incest, severe fetal abnormalities, and the life of the mother—is a direct challenge to the 1973 Supreme Court ruling in Roe v. Wade and the 1992 Supreme Court decision in Planned Parenthood of Southeastern Pennsylvania v. Casey. In Casey, the Court reaffirmed “Roe’s essential holding” that a woman has a right “to choose to have an abortion before viability and to obtain it without undue interference from the State.”
The Iowa law, in contrast, draws the line at a fetal heartbeat, not fetal viability. Fetal heartbeats are generally detected at six weeks, whereas fetal viability is normally between 24 and 28 weeks. On Tuesday the Iowa chapters of the ACLU and Planned Parenthood brought suit against Gov. Reynolds to block the new ban before it goes into effect on July 1.
As long as Kennedy remains on the Supreme Court, the Iowa law is certain to be struck down. Kennedy not only joined the 5-justice majority in Casey, but also the 5-justice majority in the 2016 case of Whole Woman’s Health v. Hellerstedt. The Whole Woman’s Health case arose from a Texas law that required abortion providers to have admitting privileges at a hospital located within 30 miles of their abortion facility. In addition, the statute mandated that abortion centers meet the same requirements as ambulatory surgery centers. In striking down the law, Kennedy and the four liberal justices concluded that by reducing the number of abortion facilities from 40 to 20 (and potentially down to 8 under the surgical center requirements), the Texas law imposed an undue burden on the right to an abortion.
When it comes to restricting abortion access, the Iowa law obviously goes far beyond the invalidated Texas law. The Roe, Casey, and Whole Woman’s Health precedents thus leave no mystery as to the fate of the Iowa statute. Under current Supreme Court precedent, the Iowa fetal heartbeat bill is unconstitutional.
An Anti-Roe Majority?
But if Kennedy steps down, the constitutional analysis could change dramatically. President Trump will undoubtedly replace him with a pro-life justice hostile to Roe—as the president has promised. In that event, the Iowa fetal heartbeat law could ultimately bring the era of Roe v. Wade to an end. The reason is because three of the current justices seem highly likely to overturn Roe and Casey—Clarence Thomas, Samuel Alito, and Neil Gorsuch—and a fourth, John Roberts, could potentially join them. Put those four justices together with a new, anti-Roe justice to replace Kennedy and there would potentially be a 5 justice, anti-Roe majority on the Supreme Court.
It goes without saying that we cannot be certain how all of the justices would rule if the Iowa heartbeat bill reaches the high court. Roberts, in particular, is sometimes a hard justice to read. He famously broke with the conservatives in the NFIB v. Sebelius case by ruling that the Affordable Care Act’s individual mandate was a tax, a decision that saved the Obama Administration’s signature domestic policy achievement. Moreover, in a major constitutional case 8 years ago, Roberts emphasized the importance of respecting long-standing precedents, explaining that “[f]idelity to precedent—the policy of stare decisis—is vital to the proper exercise of the judicial function.”
But, somewhat ironically, he made that statement in his concurring opinion in Citizens United v. Federal Election Commission, a case in which he and 4 other justices (including Kennedy, who wrote the Court’s opinion) overturned a 20-year-old Supreme Court precedent upholding contribution limits on corporate independent expenditures. In his Citizens United concurrence, Roberts explained why he did not support stare decisis in all cases:
“At the same time, stare decisis is neither an ‘inexorable command,’ nor ‘a mechanical formula of adherence to the latest decision,’ especially in constitutional cases. If it were, segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants.”
At a minimum, the Roberts concurrence in Citizens United made clear that he does not think long-standing constitutional precedents are untouchable. Add in the fact that Roberts is a consistent conservative who voted with the dissenters in Whole Woman’s Health, and the possibility grows that Kennedy may turn out to be the decisive swing vote preserving Roe and Casey.
If that is indeed the case, it may explain Grassley’s overt effort to persuade Kennedy to retire now, not later. There is no doubt that the senator, a long-time opponent of abortion, strongly supports the fetal heartbeat law. In fact, during an interview with a Des Moines television station last week, Senator Grassley applauded the governor for signing the bill.
Abortion is one of many major constitutional issues that could come out very differently in a post-Kennedy era on the Supreme Court. June 21, the last conference of the Court’s 2017-18 term, thus looms large on the calendar. If Kennedy intends to retire, one would expect an announcement by then.