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#1
Old 07-13-2018, 11:49 AM
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Can a Supreme Ce ourt Justice rescind his/her resignation?

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?

Last edited by UltraVires; 07-13-2018 at 11:49 AM. Reason: ETA: Mod please fix thread title screw up
#2
Old 07-13-2018, 12:20 PM
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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)
#3
Old 07-13-2018, 12:26 PM
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Originally Posted by Jophiel View Post
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.
#4
Old 07-13-2018, 01:56 PM
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Originally Posted by UltraVires View Post
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.
#5
Old 07-13-2018, 02:17 PM
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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.
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Last edited by Bricker; 07-13-2018 at 02:18 PM.
#6
Old 07-13-2018, 02:27 PM
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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?
#7
Old 07-13-2018, 02:34 PM
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Originally Posted by Bricker View Post
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.
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?
#8
Old 07-13-2018, 02:38 PM
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Originally Posted by Bricker View Post
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.
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?
#9
Old 07-13-2018, 02:40 PM
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Originally Posted by UltraVires View Post
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?
I don't believe a resignation letter would hold up as a contract.
#10
Old 07-13-2018, 02:42 PM
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Originally Posted by UltraVires View Post
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.
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.
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Old 07-13-2018, 02:59 PM
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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.
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#12
Old 07-13-2018, 03:39 PM
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Originally Posted by Bricker View Post
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.
What if this afternoon, the Senate votes to confirm Kavanaugh effective 8-1-18. Tomorrow morning Kennedy revokes his resignation. Still valid?
#13
Old 07-13-2018, 03:52 PM
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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.
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#14
Old 07-13-2018, 04:19 PM
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Originally Posted by UltraVires View Post
What if this afternoon, the Senate votes to confirm Kavanaugh effective 8-1-18. Tomorrow morning Kennedy revokes his resignation. Still valid?
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.
#15
Old 07-13-2018, 04:33 PM
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Originally Posted by UltraVires View Post
What if this afternoon, the Senate votes to confirm Kavanaugh effective 8-1-18. Tomorrow morning Kennedy revokes his resignation. Still valid?
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.

Last edited by OldGuy; 07-13-2018 at 04:33 PM.
#16
Old 07-13-2018, 04:43 PM
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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.
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.

Last edited by UltraVires; 07-13-2018 at 04:44 PM.
#17
Old 07-13-2018, 04:44 PM
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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?
#18
Old 07-13-2018, 04:46 PM
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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".
#19
Old 07-13-2018, 04:47 PM
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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?
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.

Last edited by Jophiel; 07-13-2018 at 04:50 PM.
#20
Old 07-13-2018, 04:49 PM
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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".
Could Souter come and say that he has behaved himself all of these years and ask for a seat on the Court?
#21
Old 07-13-2018, 04:53 PM
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Could Souter come and say that he has behaved himself all of these years and ask for a seat on the Court?
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.

Last edited by Jophiel; 07-13-2018 at 04:54 PM.
#22
Old 07-13-2018, 05:13 PM
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Sounds like a case that could go all the way to the Supreme C--

Oops.
#23
Old 07-13-2018, 05:32 PM
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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.
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.
#24
Old 07-13-2018, 05:55 PM
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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
#25
Old 07-13-2018, 06:08 PM
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Originally Posted by Alley Dweller View Post
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.
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Last edited by Bricker; 07-13-2018 at 06:09 PM.
#26
Old 07-13-2018, 06:23 PM
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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.
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.
#27
Old 07-13-2018, 07:45 PM
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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?
#28
Old 07-13-2018, 07:54 PM
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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.
#29
Old 07-13-2018, 08:07 PM
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Originally Posted by UltraVires View Post
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?
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.

Last edited by Jophiel; 07-13-2018 at 08:07 PM.
#30
Old 07-14-2018, 12:40 PM
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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?
#31
Old 07-14-2018, 01:55 PM
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Originally Posted by UltraVires View Post
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?
You still haven't offered any support for your theory that a letter is the equivalent of a contract.
#32
Old 07-14-2018, 01:58 PM
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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?
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?
#33
Old 07-14-2018, 03:32 PM
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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.
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.

Last edited by Jophiel; 07-14-2018 at 03:35 PM.
#34
Old 07-14-2018, 09:37 PM
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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).
#35
Old 07-14-2018, 09:41 PM
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Sounds like a case that could go all the way to the Supreme C--

Oops.
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?
#36
Old 07-14-2018, 10:03 PM
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"No, you recuse yourself!"
#37
Old 07-14-2018, 10:08 PM
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(Now I'm picturing two Supreme Court justices played by Gene Hackman and Denzel Washington.)
#38
Old 07-14-2018, 10:17 PM
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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?
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.
#39
Old 07-15-2018, 06:40 AM
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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?
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.
#40
Old 07-15-2018, 07:10 AM
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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.
#41
Old 07-15-2018, 07:17 AM
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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.
I understand the statement, but everyone just keeps making this type of statement, like it was handed to Moses on Mt. Sinai. You may be right, but I'm not sure it's been proven.

What is an "intent of resignation"? If I tell my boss that probably around the first of the year I'm going to retire and spend more time with the family, then I agree that is nothing firm that he should rely upon. We will have another conversation, probably late October, to see where I am at with this thought. It is a courtesy that I am extending that I did not have to do.

If I tell him that I am quitting at the end of this month, then that is more definite and more like a resignation and not just an intent to resign. It was still a courtesy to give him notice, but the period of time is much more firm.

To take your position to the extreme example, could I say that I quit, just as soon as I get my stuff out of my desk, but then, three days later, noticing that I had left a dime in the upper right hand drawer, rescind the resignation as the condition precedent had not been satisfied?
#42
Old 07-15-2018, 08:53 AM
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Originally Posted by UltraVires View Post
How would it work in the private sector if one tried to rescind a resignation? Assume an employment contract exists.
The point that you keep missing is that this is irrelevant to the question of Kennedy rescinding his resignation. The employment contract is the United States Constitution. It specifies the sole remedy if a Justice keeps showing up for work who Congress thinks shouldn't be there: impeachment. Any other solution would be obviously unconstitutional and thus fail to be enforceable.

I guess it would be similar to if you had an employment contract that said "Employee gets to hold this job forever unless he dies or the board of directors holds a vote to remove him for poor behavior." If you said you were going to resign and then said "You know what, I'll stick around" prior to that date, it would be up to the board to decide if your behavior was worthy of a vote and to get a majority to agree to fire you. But even that contract could then be taken to court and argued about if it fits contract/employment laws. In Kennedy's case, it's hard to argue that the Constitution violates US law.

Last edited by Jophiel; 07-15-2018 at 08:56 AM.
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