Kennedy Off the Bench But Still on the Job

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By Madison Alder

Justice Anthony Kennedy will retire from the U.S. Supreme Court later this month. But that doesn’t mean he’s done with legal work.

Kennedy, the court’s swing vote and the longest-sitting justice on the current court, announced his retirement and his intent to stay active as a judge, at the end of the term last month. In his public retirement letter to President Donald Trump , the 81-year-old justice said he plans on “continuing to serve in a senior status.”

Taking this status is a popular option available for federal judges and high court justices who want to continue working on cases after they retire. Senior judges receive the same salary and can take fewer cases, move around the courts, and select some of the issues they tackle.

As a justice in senior status, Kennedy would join the ranks of 483 senior judges in the federal judiciary who handle about 15 percent of federal courts’ annual workload, according to the U.S. Courts.

His annual salary as an associate justice, which was $255,300 in 2018, would stay the same, postponing his pension until he fully retires.

“Senior status is more or less akin to emeritus status for professors,” Stephen Mihm, an associate professor of history and economics at the University of Georgia, told Bloomberg Law. “It preserves dignity and the possibility that someone is still going to be productive.”

Kennedy’s opinion could also still carry significant weight, Mihm said, especially at the high court.

“It’s like a major league player coming down to the minor leagues for a couple of games,” Mihm said. Other players are “going to give them a wide berth,” he said.

Retirement Incentive

Although senior status has existed for federal judges since 1919, the same benefit wasn’t available to Supreme Court justices for another 18 years.

Senior status was only extended to former justices in 1937, following President Franklin Roosevelt’s failed attempt to add more seats to the Supreme Court through a piece of legislation called the Judicial Procedures Reform Bill, Artemus Ward, a professor of political science and law at Northern Illinois University told Bloomberg Law in an email.

The failure of the court-packing legislation is “widely known,” Ward said. “What is not so well-known is that Congress did increase retirement benefits in order to help induce voluntary retirements.”

With senior status, former justices could retain their full salary, keep an office at the Supreme Court, hire a law clerk, and attend public functions with the other justices like inaugurations and State of the Union addresses, Ward said.

A judge or justice has the option to take senior status or retire outright after meeting a retirement qualification in the U.S. Code often called “The Rule of 80.” The rule states that judges and justices 65 or older can retire with full benefits, if their age and years of service equal 80.

Senior status judges and justices continue receiving the salary of the position they left and stave off a true pension, whereas in true retirement, they receive an annuity equal to the salary they were getting at the time they retired, Ward said.

Justices who worked elsewhere in government would have to resign and forfeit their benefits, Ward said.

Justices Earl Warren, Louis Brandeis, William Brennan, Hugo Black, and Sandra Day O’Connor are just a few of the justices that took senior status when they retired, according to the Federal Judicial Center, the research and education arm of the Judiciary.

Former Justice David Souter is currently a frequent fixture on the U.S. Court of Appeals for the First Circuit.

Alleviating Pressure on Lower Courts

Senior judges are a crucial tool in helping reduce an overload of cases in the lower courts, Judge Jed S. Rakoff, a senior judge on the U.S. District Court for the Southern District of New York, told Bloomberg Law.

“The judiciary is always short of judges,” Rakoff said. “By going on senior status, you vacate a seat that the president can now fill.”

Before Rakoff and several of his colleagues took senior status in 2010, the annual case load was about 400 per judge. After they became senior judges and their open seats were filled, the annual case load was reduced to about 250, he said.

Those senior judges typically take a full or close to a full case load, he said. Rakoff estimated his current caseload is actually slightly heavier than it was before he took senior status.

Of the 890 authorized judgeships in the federal court system, 154 are currently vacant, according to U.S. Courts. And 124 of those vacancies are a result of a judge assuming senior status, Bloomberg Law analysis of the data found.

“The great majority of judges choose senior status,” Rakoff said. “It’s the normal course, not the exception.”

Some don’t see senior status so favorably.

Senior judges are a problem for lower courts because they time their retirement with certain presidents to ensure that their successors will carry their same philosophy, Ward said in an email.

“It’s a way for each of them to help pack the judiciary with like-minded judges,” he said.

Circuit Court Return

Kennedy’s retirement could land him back where he began.

One of the benefits of being a senior judge is the ability to move around the federal judiciary and help out backlogged courts, Rakoff said. In senior status, Kennedy may want to return to the U.S. Court of Appeals for the Ninth Circuit, where he served for over a decade.

The Ninth Circuit currently has 27 vacancies, according to Bloomberg Law’s analysis of U.S. Courts data. That circuit has the biggest judge shortage of all federal appeals courts.

The Supreme Court hasn’t disclosed what Kennedy’s plans might be when he takes senior status July 31.

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