The thing that gives Kennedy backers some confidence that a resignation would be sound under this president is the comfort that all sort of conservatives feel about the caliber and quality of the man that Donald Trump already picked, Neil Gorsuch.
The nine justices are due to rule in six cases, not including their decision expected in the coming days on whether to take up President Donald Trump's bid to revive his ban on travelers from six predominantly Muslim countries in which an emergency appeal is pending.
Furthermore, they said that their colleagues' "compromise" - allowing in people with connections to the United States - would "prove unworkable".
If the justices refuse to review the case, the lower courts' decisions would stand and the Trump administration would be back at square one in trying to impose the ban that Trump promised during his presidential campaign.
Gorsuch has asserted himself on paper as well. And the justices said they'll take on a new clash between gay rights and religion in a case about a wedding cake for a same-sex couple in Colorado.
"Summary reversal is usually reserved for cases where the law is settled and stable, the facts are not in dispute and the decision below is clearly in error", Gorsuch wrote. The last justice to announce his retirement from the bench was Justice Lewis F. Powell Jr., who announced he would retire on June 26, 1987, 30 years ago Monday.
"The compromise also will invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a 'bona fide relationship'".
Conservatives have always cared deeply about the federal bench - atop which sits the Supreme Court - but a series of rulings over the Obama years made Trump's argument even more powerful. On Monday the court finally pulled the trigger after months of inexplicable inaction.
The case was being closely watched by advocates of school vouchers, who hope the court will make it easier to use state money to pay for private, religious schooling in states that now prohibit it.
There had been speculation that Supreme Court Justice Anthony Kennedy could reveal his retirement from the court Monday. The church sued after being denied state taxpayer funds for a playground improvement project because of a Missouri constitutional provision barring state funding for religious entities. Obviously, he is aware that his being replaced with a much more conservative justice will dramatically change the court's ideology and could lead to some of his most important opinions being overruled. "Replacing Justice Kennedy with a Trump nominee would nearly certainly sound the death knell for Roe, just as candidate Trump promised during the 2016 campaign". But Gorsuch replaced a conservative in a similar mold, Justice Antonin Scalia, who died previous year.
"They ask for equal dignity in the eyes of the law and the Constitution grants them that right", Kennedy had written in the judgment.