I have always believed that people should, if they wish to, be able to retire while they still have enough time and energy to do some of the things they always wanted to, whether it be to travel, take up golf, write their memoirs, garden, or just spend more time with their family. I was fortunate to be able to retire early, actually did not have much choice, but it has worked out well for me and the family. That said, here I am about to advocate that an 81-year-old man stay on the job for at least another 4 years!
The man is Supreme Court Justice Anthony Kennedy. On July 23rd, he will celebrate his 81st birthday, and rumour has it that he is giving serious consideration to retiring in the near future. Back in February I wrote a post about this very thing, noting that in addition to Kennedy, Justice Ruth Bader Ginsburg (84) and Justice Stephen Breyer (78) were of an age to retire should they decide to do so.
Why does any of this matter? Let us set aside the labels of ‘conservative’ and ‘liberal’ for the moment, and speak only of the issues and voting histories. Kennedy has provided the swing vote in a number of cases in favour of human rights, civil rights, and social issues. His was the vote that formed a majority in the case of Obergefell v. Hodges, clearing the way for same-sex marriage. The others were Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. “They ask for equal dignity in the eyes of the law and the Constitution grants them that right,” Kennedy wrote in his majority opinion.
Kennedy voted to reaffirm the core holding of Roe v. Wade in 1992. According to Elizabeth Wydra, president of the Constitutional Accountability Center. “Replacing Justice Kennedy with a Trump nominee would almost certainly sound the death knell for Roe, just as candidate Trump promised during the 2016 campaign.”
Which is not to say that I agree with all of Kennedy’s views. He supported Citizens United, which as we now know was a horrible decision, he has voted for stronger gun rights, and in 2013 voted to strike down two key provisions to the Voting Rights Act of 1965, thus enabling more widespread racial discrimination in the voting process. But overall, I believe he is a fair judge, an experienced judge, and I believe he will serve the rights of the people of this nation far better than anybody Donald Trump might appoint.
I am not alone in my opinion. Comedian, actor, director and writer Carl Reiner (and father of Rob Reiner) penned a letter that ran in the New York Times Friday, 07 July, titled Justice Kennedy, Don’t Retire. The letter begins …
Dear Justice Anthony Kennedy,
I would like to start with congratulatory wishes on your forthcoming 81st birthday.
As someone who has almost a decade and a half on you, I can tell you this: It may well be that the best part of your career has just begun. As a nonagenarian who has just completed the most prolific, productive five years of my life, I feel it incumbent upon me to urge a hearty octogenarian such as yourself not to put your feet up on the ottoman just yet. You have important and fulfilling work ahead of you.
When I turned 81, I had finished “Oceans Eleven” and was gearing up for “Oceans Twelve” while also writing another book, which led me to a cross-country book tour.
I know what it means to be your age. I know the problems that come with the journey. But these are not ordinary times, and you, sir, are anything but an ordinary man.
The country needs justices like you who decide each case with fairness and humanity, and whose allegiance is to the Constitution of the United States of America, not to a party line. You have always voted your conscience, and defended the rights and liberties of all our citizens.
I’m sure you’ve considered the various options, as we all do when we reach a certain age. After all, although our lives are different, I’m sure there are similarities. I get up in the morning, and if I’m not in the obits, I eat breakfast. You get up, meet with your clerks and engage with them in spirited discussion about the constitutional ramifications of the important cases at hand. I engage in spirited discussion with my publisher about the release order of my next three books.
You have lunch and I have lunch. You return to your chambers and I to my desk. At day’s end, you go home to ponder the important decisions you will be making tomorrow. I go downstairs and join my friend Mel in front of the television, and we ponder out loud how many steps Vanna White will take when walking over to the letter board tonight after leaving Pat Sajak’s side. (F.Y.I., it is usually six, sometimes seven, rarely eight, but never nine.)
Imagine if you retired from the bench. What would your days be like? Here’s a scenario: You revisit your carefree years, rent a red Volkswagen and travel through Europe, stopping in Paris for coffee and a croissant on the Champs-Élysées, then on to the Amalfi coast, where you’ll sail to the waterfalls of Marmorata and the Emerald Grotto.
How would you feel, while reading your newspaper, seeing a headline that read “Roe v. Wade Overturned”? Do you see how this could ruin a good meal? A good life? A great country?
I believe I’ve made my case. It’s now 1 a.m., and I am going upstairs to my computer to tweet out my thought of the day, because I can. I have the freedom to do that because of people like you who are committed to protecting our liberties and our Constitution.
I thank you, as all our fellow citizens will.
Given the way Trump’s mind works, when it does, it is impossible to predict who he would nominate to replace Kennedy if he should retire, but most likely one of the remaining 10 from his ‘short list’ back when he nominated Neil Gorsuch to replace Antonin Scalia. Among pundits, the most likely first choice appears to be Thomas Hardiman, a United States Circuit Judge of the United States Court of Appeals for the Third Circuit who resides in Pennsylvania.
Since all this is speculative, and we can hope that Kennedy will stick around for at least 4 more years, I won’t go into much background, but a few of Hardiman’s more notable rulings bear looking at:
- In the 2008 case Busch vs. Marple Newton School District, Hardiman wrote an opinion in favor of parents who described themselves as Evangelical Christians and were barred from reading from the Bible during a kindergarten “show and tell” presentation.
- In the 2010 case Kelly v. Borough of Carlisle, Hardiman ruled that a police officer had qualified immunity because there is no clearly established First Amendment right to videotape police officers during traffic stops.
- In the 2016 case Binderup v. Attorney General which related to the issue of felons owning firearms, he ruled that “only dangerous persons which were likely to use firearms for illicit purposes” could be barred from owning firearms.
Let us just hope that Carl Reiner’s letter gives pause to any notions of retirement Justice Kennedy might have had!