Speculation about whether Justice Anthony Kennedy will retire is swirling as the Supreme Court's term ends this week.
Sens. Chuck Grassley and Ted Cruz, both Republican members of the Judiciary Committee, have suggested that a vacancy could come this summer. Similarly, former justices' law clerks have publicly gossiped about the potential for another opening.
All eyes subsequently turned to Kennedy, a Ronald Reagan appointee who has served as the swing vote on several of the Supreme Court's closely decided cases, as a justice who could step aside. As the longest-serving justice about to turn age 81 next month, the Republican administration in power could provide the Reagan appointee more comfort about leaving now. The oldest member of the high court is Justice Ruth Bader Ginsburg at 84.
The Supreme Court shot down rumors of Kennedy's retirement late last year and noted that he had begun the hiring process for law clerks for the next term. The high court did not respond to requests for comment regarding Kennedy's hiring of clerks this week, but the Supreme Court on Monday allotted new circuit assignments and Kennedy was included.
Kennedy's former clerks are often reluctant to comment and fuel the legal community's favorite parlor game: Guessing about the potential for Kennedy to retire.
Leah Litman, a University of California, Irvine law professor and former Kennedy clerk, told the Washington Examiner she is not sure if Kennedy will leave before the start of the next term in October but believes it has already gotten late in the calendar for him to leave.
"I don't have any particular insight or really know, but I guess just timing-wise I'm inclined to think [his retirement is] unlikely to happen at least this particular term," Litman said.
A recent reunion of Kennedy's clerks prompted Internet gossip that Kennedy may choose to leave the high court because the event was moved up a year from its customary five-year increment. In November 2016, the Supreme Court said the timing of the event was altered so Kennedy's former clerks could commemorate his 80th birthday.
One former clerk who could play a large role in Kennedy's calculus regarding whether to retire is new Justice Neil Gorsuch.
Josh Blackman, a South Texas College of Law professor, said the jury is still out about how Gorsuch's presence could affect Kennedy's thinking about leaving.
"On the one hand, President Trump's nomination of a former Kennedy clerk should assuage concerns that Justice Kennedy may have about who will replace him," Blackman said. "On the other hand, Justice Gorsuch's conservative approach to date — perhaps more conservative than Justice Scalia's — could give Justice Kennedy pause about letting a Republican nominate his successor."
Liberals appear nervous that Trump may get to select Kennedy's replacement. During an American Constitution Society event on Thursda, American Civil Liberties Union attorney Lee Rowland said left-leaning Americans are placing their trust in Kennedy.
"I think for progressives who view the executive and the legislative as basically locked up by the Republicans, I think there's a lot of hopes and dreams being placed on the shoulders of Anthony Kennedy — assuming those shoulders can take one more hope or dream from the progressive community," Rowland said.
Whether Kennedy will step down before the start of the next term is unknown. But several high-stakes cases loom large on the horizon, such as the litigation over President Trump's travel ban, which could give Kennedy the opportunity to serve as the swing vote.
Some court-watchers think the turmoil ensnaring the Trump administration also may affect Kennedy's thoughts about how or whether to leave the Supreme Court. If questions about Trump's firing of former FBI Director James Comey and the president's handling of the inquiries into his 2016 campaign's Russian connections weigh on Kennedy, he may view his decision to leave the high court differently.
Neal Devins, Sandra Day O'Connor law professor at the College of William and Mary in Williamsburg, Va., previously told the Washington Examiner that Kennedy has been "sensitive to how people have portrayed him."
"If you think about Kennedy, he's probably a Robert Mueller, Jim Comey, kind of Republican in a way — and that doesn't mean he will retire," Devins said last month.