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April 19, 2017

Is Justice Kennedy or Justice Thomas really likely to retire this summer?

The question in the title of this post is promoted by this new article in The Hill headlined "Grassley: Another Supreme Court vacancy likely this summer." Here are the basic details:

Sen. Chuck Grassley is predicting that President Trump will get to nominate a second justice to the Supreme Court as early as this summer.

The Iowa Republican, chairman of the Senate Judiciary Committee, said there is a "rumored" upcoming retirement but declined to say which justice he expects to step down. "I would expect a resignation this summer," Grassley said during a Q&A with the Muscatine Journal in Iowa.

Grassley added that the president's next Supreme Court nominee would likely come off the list of roughly two dozen names Trump announced before taking over the White House....

Grassley isn't the first Republican to signal that he thinks a second justice will retire in the near future. Sen. Ted Cruz (R-Texas), who is also on the Judiciary Committee, has repeatedly predicted that he thinks Trump will get to make another nomination as soon as this summer.

"I think we're likely to see another vacancy potentially as soon as this summer. I think we'll see another vacancy either this summer or next summer," Cruz told the Chris Saucedo Show last week.

I am inclined to guess that Justice Thomas is the most likely current justice to be eager to get out of DC and give Prez Trump another quick opportunity to shape the direction of the Court, and I also think he is the justice most likely to be, perhaps indirectly, "leaking" his plans to important Senators like Cruz and Grassley. But maybe, after completing his 30th Term on the Court, Justice Kennedy is ready to move on. Time will tell, and a lot of sentencing jurisprudence could be impacted either way.

April 19, 2017 at 12:36 PM | Permalink


Rick Hasen tossed out Thomas the other day in response to an amusing "RBG for Garland" idea. Noted that Trump would be the most likely to pick someone close to his ideology.

His wife was a Cruz delegate. So, guess maybe a Justice Cruz on their short list.

Posted by: Joe | Apr 19, 2017 12:38:10 PM

I am sure the Senate Judiciary Committee and the rest of the Justices would be "thrilled" to have Cruz nominated.

Posted by: DaveP | Apr 19, 2017 5:38:29 PM

Trump will be picking 4 or 5 Justices. The Congress should impeach the Obama abominations for their decisions. To deter future Justices.

I have proposed the paths to improving the performance of this Supremely Stupid Court, all via a Judiciary Act, and nothing else.


Posted by: David Behar | Apr 19, 2017 9:01:49 PM

The quicker Thomas goes the better. The worst Justice in history. Cruel, uncaring, obtuse, bitter. A disgrace. Good riddance.

Posted by: James from Iowa | Apr 20, 2017 9:51:26 AM

Not sure if James would like his replacement given the people doing the replacement probably see Thomas as a model.

Posted by: Joe | Apr 20, 2017 10:00:34 AM

I'd vote for Ann Coulter over Thomas!

Posted by: James | Apr 20, 2017 11:29:04 AM


I read that as "david be harmed jd"

which seems entirely accurate.

Posted by: Passing through | Apr 20, 2017 3:32:54 PM


Curious. What did Clarence Thomas do that made him the "worst justice in history?" Does that mean any justice who takes an originalist view of the Constitution makes him, her, or hir a candidate for the "worse judge in history?" In extension, is sentencing law and policy based upon the Constitution, by inference, "bad sentencing law and policy?"


Posted by: Eric Knight | Apr 21, 2017 5:15:16 PM

Eric Knight, Tomas was cruel from the beginning:

The Youngest, Cruelest Justice
Published: February 27, 1992

Only four months after taking his oath as a Justice, Clarence Thomas finds himself rebuked by a seven-member majority of the Rehnquist Court for disregarding humane standards of decency. The withering reprimand, included in the Supreme Court's majority opinion in a prison case Tuesday, is this:

To deny, as the dissent does, the difference between punching a prisoner in the face and serving him unappetizing food is to ignore the concepts of dignity, civilized standards, humanity, and decency that animate the Eighth Amendment.

The Eighth Amendment forbids cruel and unusual punishments. Only Justices Thomas and Antonin Scalia refused to apply it to the case of Keith Hudson, a Louisiana prisoner who was shackled and beaten by two guards while their supervisor watched, warning them only against having "too much fun."

The two dissenters likened the case to prisoner gripes about inconveniences behind bars. They contended that since the prisoner suffered only a split lip, loosened teeth and a broken dental plate, he had no constitutional complaint. They chided Justice Sandra Day O'Connor's majority opinion for turning the Bill of Rights into "a national code of prison regulation."

The seven Justices are joined by prison reformers, human rights groups and the Bush Administration's Department of Justice in recognizing that this case turned on "contemporary standards of decency." They know it is indisputably cruel when prison guards add brutally and recklessly to legally prescribed punishment. They know it is up to the courts to make sure such conduct remains unusual as well.

The Thomas dissent would be alarming coming from any justice. Coming from him, it rings also with crashing disappointment.

He is, for one thing, the youngest Justice. He might well serve until the year 2030 or beyond. Although his voting record now is identical only to that of Justice Scalia, he could attract enough support from future appointees to move the Court still further to the right.

A second disappointment concerns hope. Justice Thomas rose from poverty and discrimination in Pin Point, Ga., and his nomination won support from prominent people sure he would bring to the Court the understanding bred of hardship. Indeed, he testified poignantly about watching busloads of prisoners from his window. "I say to myself almost every day, there but for the grace of God go I," he told senators eager to believe him.

As a Justice, Clarence Thomas doesn't talk that way anymore.

Posted by: James | Apr 22, 2017 6:45:32 PM

Musical.Ly is wishing it could maximize this fad as well as be a pressure in the online video clip service.

Posted by: livelymusically | Dec 8, 2017 5:46:55 AM

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