The Supreme Court is allowing the Trump administration to go forward with a limited version of its ban on travel from six mostly Muslim countries, a victory for President Donald Trump in the biggest legal controversy of his young presidency.
Justice Clarence Thomas, joined by Samuel Alito and Neil Gorsuch, said the government has shown it is likely to succeed on the merits of the case, and that it will suffer irreparable harm with any interference.
The court is expected to decide within days whether the Trump administration can enforce a ban on visitors to the US from six mostly Muslim countries - Iran, Libya, Somalia, Sudan, Syria and Yemen.
The March 6 order called for a 90-day ban on travelers from Libya, Iran, Somalia, Sudan, Syria and Yemen and a 120-day ban on all refugees entering the United States to enable the government to implement stronger vetting procedures.
Justices Clarence Thomas, Samuel A Alito Jr and Neil M Gorsuch, dissented from part of the court's opinion- they opted for a complete revival of the travel ban without the caveat on "bona fide" USA connections. President Donald Trump's education secretary, Betsy DeVos, is a leading supporter of such "school choice" plans.
The judge said tweets by Trump suggested that the order sought to ban people on the basis of their religion, and not in the interest of national security, as Trump had claimed. It would also ban Syrian refugees from entering the country.
With today's Supreme Court order, the travel ban will remain on hold for plaintiffs who challenged the executive order and for anyone who is "similarly situated", the justices say - in other words, foreign nationals who have relatives in the USA, or who plan to attend school or work here. "My number one responsibility as Commander in Chief is to keep the American people safe".
In terms of a replacement, Kennedy might take comfort in the list of 20 judges Trump has vowed to draw from when considering the next vacancy on the court.
Conversely, those with a "close familial relationship" in the U.S. are not affected.
Kennedy is 80 years old, and he's been on the court for nearly 30 years.
The court has not ruled for a full travel ban, but requires that arrivals to the U.S. prove "a bona fide relationship" with a USA citizen in order to enter, according to the New York Times.
Sources close to Kennedy say that he is seriously considering retirement, but they are unclear if it could occur as early as this term.
The Supreme Court left the lower-court injunctions against the ban in place, but only with respect to the challengers to the ban themselves and others in similar circumstances, meaning they involve people in the United States who have relationships with foreign nationals overseas and whose rights might be affected if those foreigners were excluded from entry. A revised order was issued in March.
The revised order also jettisoned language that gave preferential status to persecuted religious minorities, which critics said could be taken as favoring Christians and other religious groups over Muslims.
The 9th Circuit Court of Appeals, based in San Francisco, ruled unanimously in June that the order does not comply with federal immigration law, and Trump "exceeded the scope of the authority delegated to him by Congress".