No, but Souter has already actively resigned, not just said that one day he plans to resign. Upon his resignation he was no longer a Justice and hence was no longer covered by that provision. Likewise, Kennedy gets to keep going to work provided he keeps going to work.
Sounds like a case that could go all the way to the Supreme C–
That just begs the question. I could baldly declare that Kennedy can keep coming to work up until July 31 because after that date, he has “actively resigned” as evidenced by his letter.
Note: Justice Kennedy DID NOT RESIGN from the Supreme Court.
He decided to “end his regular active status as an Associate Justice” and “continue to serve in a senior status…” He sent President Trump a letter notifying him of his decision. His decision did not require presidential acceptance.
Since the Constitution essentially guarantees Supreme Court Justices employment for life (except for impeachment), Justices do not resign. Why give up their salary? I don’t have time to look up the exact details, but having senile Justices serve on the Supreme Court became a problem and Congress did not want to have to impeach them, so Congress passed a law allowing Justices to elect “senior status” in order to avoid losing their salaries. 28 USC § 371
Senior status will not permit Justice Kennedy to vote on any more Supreme Court cases, or in en banc circuit court decisions. But he can sit “by designation,” on circuit panels or (I think) as a district trial judge.
No, it doesn’t beg the question. It answers it.
David Souter resigned. That’s an event in the past. Once you have resigned, you can’t unresign.
Anthony Kennedy has not resigned. He has said he is going to resign in the future. But he can change his mind on that at any point before he actually resigns.
No. He says he resigns, but the effective date is sometime in the future. It happens all of the time in real life.
I agree to rent your house starting August 1. You move all of your stuff out and budget for my rent payments. Do I get take backsies if I change my mind?
Supposedly Justice William O. Douglas resisted resigning until physical and mental decrepitude was well advanced. And after resigning, he kept trying to attend conferences and other Court functions as if he were still active. Bob Woodward’s book describes Douglas’s nurse spraying deodorant on his wheelchair to camouflage the odor of his colostomy bag as other Justices tried to persuade him to leave.
But you would appeal to the court, right? In this case the court would (a) say you don’t have standing to sue and (b) toss the case to Congress since the remedy for misbehaving Justices is already spelled out: Congress removes them via impeachment.
If Kennedy decided not to resign, the only recourse would be for enough people in Congress to be upset to remove him from office via impeachment. It’s doubtful (I suspect) that enough people on Congress would go along with this for it to be successful.
I understand you’re argument, but you are begging the question by assuming that Congress would have to impeach Kennedy in this circumstance because his recission of the resignation would constitute “bad behavior” (possibly). I disagree. My argument is that when he wrote the letter saying “I resign effective July 31” then come midnight August 1, he is no longer a Supreme Court Justice, even if he changes his mind in the interim.
Of course, there are solid arguments against that proposition, and in this thread I wanted to hash those out. Now, the argument is that once confirmed Kennedy (or any other Justice) assuming good behavior, or at least good enough behavior so as not to be impeached and removed from office, can keep his seat until he dies. Agreed.
However, it has become customary for justices not to do that, but to resign whenever they become older and unable/unwilling to continue to serve. Nobody denies that despite the absolute language in the Constitution that a Justice may voluntarily resign his seat on the Court. And I believe it is similarly undisputed that once a resignation is effective, he or she can no longer use the clause to return to the Court. So Souter, O’Connor, Stevens, etc. have taken voluntary action such that they may not come back (unless, of course, a vacancy arises and they are renominated and reconfirmed).
So we would agree that if Kennedy had said effective TODAY he resigned, there would be no take backsies, agreed? So why because he specifies some other date does it have less of an effect?
You still haven’t offered any support for your theory that a letter is the equivalent of a contract.
How many times are you going to ask this same question? Are you still hoping that you’ll get a different answer at some point?
But it doesn’t matter. If there actually WAS a debate about it, the means of resolution for most of us would be through the court. The court would rule that the only people with standing to sue about it are the same people who have the only Constitutionally prescribed method for dealing with it. If Congress felt put out out by his rescinding his resignation, they would have to impeach him. The highest law document of the land offers no other recourse regardless of what would happen if you refused to pay for some shoes you ordered or whatever comparisons you’re trying to make.
You keep trying to compare it to instances where the means of resolution would be to go to court and the court would issue a ruling on it. That doesn’t apply here.
FWIW, I’m glad you asked this question, because I was idly wondering the same thing. But I figured if I with my known outlook asked the question, the responses would be like 90% conservatives gloating/mocking me for political fantasies, and figured it wasn’t worth it.
You asking, though? You get real answers. So thanks!
My understanding is that a contract must have consideration–each side must get something out of it. A letter of intent to resign doesn’t seem to have consideration for either side. Obviously I barely know what I’m talking about here, but isn’t there something along these lines that would preclude a letter of intent to resign from being a contract?
As for whether Kennedy has resigned, let’s say that he, unlike Souter, hasn’t EFFECTIVELY resigned. His letter makes it clear when his resignation will be effective. Until he’s effectively resigned, mind-changes seem at least theoretically possible (although they are of course profoundly unlikely–it’s not like Kennedy was surprised by what toadstool was gonna appoint his replacement, and apparently he’s fine with that).
Heh. This does raise an interesting question. What if there’s a legal question over whether someone can continue sitting on the Supreme Court, and the question goes to the SC, and the decision is 5-4 in their favor, with the person in question casting the deciding vote? (Obviously it’d be poor form to vote in a case in which you have such an interest, but we’re assuming this person’s right to vote is already in question, so let’s grant that they’re not behaving above reproach).
My understanding is that a 4-4 tie leaves things as they stood before the SC ruled, and the default would be for the member to continue to be able to vote, so it’d go in their favor.
But what if the court were down a member, and the vote was 4-4 instead?
“No, you recuse yourself!”
(Now I’m picturing two Supreme Court justices played by Gene Hackman and Denzel Washington.)
I believe the policy is that Supreme Court Justices decide individually for themselves if there are grounds to recuse themselves.
A major precedent here is one of the Court’s most famous cases, Marbury v Madison. Chief Justice John Marshall, who write the decision, should have recused himself by any reasonable standard. He was so involved in the case, he could have been named as a co-defendant.
I guess the issue (that neither me nor anyone else has answered) is the effectiveness of a resignation. Does a letter saying that I resign effective July 31 mean:
a) I definitely and unequivocally resign, however I’ll need time to pack up my office and finish up a few things, so I’ll be out by July 31. or
b) I intend to resign on July 31, but hey, who knows what life may throw at me in the meantime.
I tend to believe it is A. If this letter is a mere courtesy that Kennedy intends to resign in the future, then surely he will have to write a followup letter on July 31 saying that it’s for real, right?
How would it work in the private sector if one tried to rescind a resignation? Assume an employment contract exists.
In just about any job, you can’t rescind a resignation, but you can rescind an intent of resignation. The latter is what Kennedy has now. The former is presumably what he’ll have come August.