Inspired by my random thought in the other thread. Suppose Anthony Kennedy wakes up this morning and decides that he just can’t do it. Retirement sucks and he wants to keep working. Plus he (hypothetically) doesn’t like Trump’s pick of Kavanaugh and believes that he will take the Court too far right.
So he writes Trump a letter rescinding his resignation (that remember was effective July 31). Would his recession be valid? What if he sent it August 15 before Kavanaugh was confirmed?
Constitutionally, he’s there until he chooses not to be, right? There’s no law about exactly how you must resign. Announcing a resignation in advance is a polite formality versus just not showing up for work any longer. My guess is that if he decided tomorrow to keep the job, there’s nothing forcing him out (unless Congress chooses to impeach him)
That’s definitely a solid way of looking at it. However, what about the argument that the letter is a contractual offer and Trump has accepted it? Therefore, Kennedy has personally waived any argument he may have to keep his seat by previously relinquishing his pay and associated duties.
What’s the consideration? Unless you put a dollar value on a SC pick, I don’t think that argument will work.
The general rule is that a resignation is effective on the date it specifies, when it is delivered to the President, the President manifests acceptance of it, and any conditions attached to the resignation are fulfilled.
I believe he could withdraw the resignation prior to its effective date but not thereafter.
My understanding is that unlike Executive Branch staff, Supreme Court Justices don’t “serve at the pleasure of the President” so what significance does the President “accepting” a SCOTUS resignation hold?
Suppose we contract for me to deliver 10 widgets to you on August 1. You would agree that I would be in breach if on July 25 I told you that I wasn’t delivering.
Why would a resignation specified on a date certain be different?
If I’m understanding you correctly, I agree. A Justice can withdraw a future resignation if he wishes. But once the resignation has gone into effect, he’s now a former Justice and he cannot rescind his resignation and go back to being a Justice (unless he’s reappointed).
At the moment, Kennedy has not resigned; he has only stated that he plans on resigning on June 31. He can change his plans up until then.
Consider the alternative; that a Justice is bound to follow any plans which he publicly announces. If Kennedy had announced ten years ago that he was going to stay on the court until he died, would anyone be suggesting that he was bound by that and wasn’t allowed to resign?
I don’t believe a resignation letter would hold up as a contract.
Well, the Constitution already offers a method of dealing with bad behavior from judges which would be to impeach them. So breaking that “contract” might be grounds for an impeachment hearing but it’s no guarantee for kicking Kennedy off the bench. A lower court wouldn’t try to remove him for some breach of contract because the Constitution doesn’t allow for removing a SC Justice in that manner.
If any of us were to tell out bosses that we resign as of 3 weeks from today, any of us can rescind that prior to effective date.
Because, we have not resigned, we have just announced our intent to resign. The announcement is a courtesy.
As a SCJ, Kennedy answers only to himself about whether he serves or not and does so until he actually resigns.
What if this afternoon, the Senate votes to confirm Kavanaugh effective 8-1-18. Tomorrow morning Kennedy revokes his resignation. Still valid?
I can’t find any precedent to the question, but I will give you my opinion: yes. In my view, he can revoke the resignation until midnight 7-31-18.
Kavanaugh’s appointment would be contingent on their being a vacancy for him to fill on August 1, 2018. If Kennedy withdraws his resignation, there would be no such vacancy.
What if the President recommended and the Senate voted to confirm 9 new justices today? Are you going to kick out all of them? It’s true that the other justices haven’t announced retirements, but as other posters here have mostly agreed, the announcement itself is not binding.
I understand and I have no precedent to cite either. The Constitution does not recognize the resignation of a Supreme Court Justice, but I think such a thing is implicit in every job.
I think an apt analogy would be if I had an employment contract from 7-31-17 to 7-31-19. On 7-1-18 I tell the appropriate person that I am terminating my employment contract effective 7-31-18. He accepts. He trains the new guy or gal and he or she is ready to start on 8-1-18.
At 11:30pm on 7-31-18 I tell the appropriate person that I changed my mind; that I want to stay on for the duration of my contract. I think that any judge would say that I had forfeited or waived my right to the duration of my contract.
Likewise, Kennedy has a “contract” that he can be an Associate Justice of the Supreme Court so long as he maintains “good behavior.” He exchanged his right to hold that position in exchange for no more pay (he made that promise currently) but said that it would be effective 7-31-18.
Where is the difference?
ETA: An anticipatory breach was the term I was looking for. 
It’s my uneducated understanding that the current number of judges is a matter of convention, not law, and that court packing is entirely legal (though frowned on because if everybody did it there’d be nobody left who wasn’t a supreme court judge). This all being the case, couldn’t a Kavanaugh appointment be upheld regardless of whether Kennedy withdrew his resignation or not, increasing the court size in the meantime?
The primary difference is that the contract here is the United States Constitution, the premiere legal document in our nation, which says Kennedy gets to serve indefinitely provided he shows “good behavior”.
I believe it’s actually a matter of statute. So Congress would have to first pass a law increasing the number of seats. The Constitution doesn’t specify a number of seats but Congress has decided on a number by law. When Roosevelt wanted to pack the court, they had to actually write a law (which died in committee) increasing the seats to fifteen.
Could Souter come and say that he has behaved himself all of these years and ask for a seat on the Court?