Big news hiding in Nina Totenberg’s story on Justice Gorsuch voting 100% with Justice Thomas:
But it is unlikely that Kennedy will remain on the court for the full four years of the Trump presidency. While he long ago hired his law clerks for the coming term, he has not done so for the following term (beginning Oct. 2018), and has let applicants for those positions know he is considering retirement.
Kennedy’s position on the court is more than consequential. In the most hotly contested and closely divided cases, his vote often decides the outcome. With every passing day, it has become more clear that President Trump’s first Supreme Court nominee, Neil Gorsuch, is probably even more conservative than the justice he replaced, Antonin Scalia.
This would put Justice Kennedy’s retirement right before the 2018 midterms, giving the Republican base reasons to turn out and keep the Senate with a Republican majority (already a strong possibility in 2018).
He’ll be able to go out on a high note, deciding the fate of partisan gerrymandering, gay rights, and who knows what else.
UPDATE: Republicans in the Senate would have a strategic decision to make: try to confirm a replacement before the elections, or use it as a tool to boost midterm turnout.