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Former Clerk For Justice Anthony Kennedy Reacts To His Retirement Announcement


Dan Epps has been hearing Kennedy retirement rumors for years and talking about them on his Supreme Court podcast First Mondays. Epps clerked for Justice Kennedy from 2009 to 2010. He joins me now. Welcome to the program.

DAN EPPS: Thanks for having me.

CORNISH: So as we mentioned, we have been hearing about retirement rumors for years. Are you surprised, though, about this announcement coming today? What was your reaction when you heard the news?

EPPS: You know, I was definitely surprised in the sense that I was going to be surprised whenever it came. I had been hearing tons of rumors for a long time. Justice Kennedy moved up his law clerk reunion, which was supposed to be this year, to last year, and a lot of his clerks thought that meant he was going to retire last year. And then he didn't.

But that gave us - a lot of us a sense of sort of unease that something was coming. I was surprised at the timing today because I thought he would have - if he was going to announce it today, he would have done it while the court was still in session but waited a few hours to do so, for whatever reason.

CORNISH: What message should we take from the fact that Kennedy is stepping down during this particular presidency, right? Like, having now worked with Justice Gorsuch, does this telegraph that he has faith in President Trump's choice to replace him?

EPPS: He seems to have some faith. You know, he - in his separate opinion in the travel ban case, Trump v. Hawaii, earlier this week, he sort of seemed to do some very self-conscious handwringing about how - the world watching whether a democracy is working. But, you know, he may just think he's not capable of doing the job anymore, and it's time to give someone else a chance. You know, I assume, you know, he - you know, he doesn't agree with Justice Gorsuch about everything. But he respects him and thinks he's an honorable man and imagines that a replacement will be somewhat similar.

CORNISH: In today's political climate, Justice Kennedy is a moderate, right? What do you think his departure means for the dynamics on the bench?

EPPS: Sure. You know, and I would say, to be clear, you know, he's a centrist on the court. But he still is a conservative. At heart, he is a conservative. And I think he is - I wouldn't say he's dead center of all political issues. It's just he has been at the dead center of the court and has veered away from conservative orthodoxy on some issues.

I think it is quite likely that whoever replaces him will be a much more doctrinaire conservative and will much more consistently vote how we would expect a Republican-appointed justice to vote. And so what we're seeing with the changes in membership in the court over recent years is a move towards sort of stricter party lines on the court, which I think is a shame.

We used to have a number of justices who would sort of vote against what we would expect their party interest to be, like Justice Stevens, who was appointed by a Republican president, like Justice Souter. And going forward, I think what we're likely to see is, you know, Republican-appointed justices voting in conservative directions all the time, and Democratic-appointed justices voting in liberal directions almost all the time. And I think that's going to undermine public confidence in the court a little bit.

CORNISH: What do you think his legacy will be?

EPPS: You know, it's going to be quite significant. I'm - people - you know, just by virtue of being the sort of swing justice on the court for so long, you know, he wrote so many important opinions that are going to be cited over and over over the years. He certainly - I'd say he didn't contribute something in the way of a distinctive judicial methodology in the way that Justice Scalia did, advancing originalism and textualism. But he wrote a bunch of important cases.

And I think everyone who writes about his legacy is going to talk about his contributions to the string of gay rights cases - Romer v. Evans, Lawrence v. Texas and ultimately culminating in Obergefell v. Hodges, the gay marriage case. And that will be certainly, you know, written up every time someone mentions his name.

CORNISH: That's Dan Epps. He clerked for Justice Kennedy from 2009 to 2010. He's now a professor at Washington University Law and also host of the popular legal podcast about the Supreme Court First Mondays. Dan Epps, thanks for speaking with ALL THINGS CONSIDERED.

EPPS: Thanks for having me. Transcript provided by NPR, Copyright NPR.