As the October 2017 term winds down, all eyes are on Justice Kennedy for any indications that he will announce his retirement from the bench. While there have been no new rumors or public signs that he intends to retire, both Republicans and Democrats have been monitoring the situation closely as a vacancy would likely trigger a contentious confirmation battle and potentially entrench a right leaning majority on bench the for decades. While Republicans currently hold a slim majority in Senate, if Kennedy does not retire this year and the Democrats regain control in the midterm elections, it could become much more difficult for Republicans to confirm their desired nominee.
If anything, there are some indicators that Kennedy intends to stay on for another year as he has already secured his clerks for the next term and will be teaching in Salzburg, Austria this summer. Looking at this term, Kennedy is expected to be the deciding vote in several outstanding blockbuster cases, Trump v. Hawaii and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, being two of the most well-known and anticipated opinions yet to be released. At this point, Kennedy has only released one majority opinion and it is likely we will see more as the awaited opinions for some of the Court’s more controversial and ideologically split cases are released.
Empirical SCOTUS: Out of steam or out of time provides an analysis of this historically slow release of opinions. While it is not surprising that adding a new Justice would provide some level of disruption, the data shows that Gorsuch’s voting patterns have been less conservative than previously expected, one recent and notable example being his vote with the Court’s liberal wing in Sessions v. Dimaya. This deviation may be contributing to an overall difficulty in reaching consensus. On a whole, this term seemed to be marked with a high level of disagreement with the highest number of majority opinions through April with only the minimum number of justices in the majority. This lack of consensus could help explain the increasing gap between oral argument and opinion. Whether a retirement would set the next term up for another historically slow year with a new justice to acclimate to or increased output due to increased harmony would remain to be seen.