A few weeks ago, we were emailing with one of our sources about an interesting fact we noticed, based on Above the Law’s real-time coverage of Supreme Court clerk hiring. The fact: thus far, Justice John Paul Stevens has hired just one law clerk for October Term 2010 (Sam Erman (Michigan 2007 / Garland)).
We didn’t write about it at the time, because OT 2010 is still a year away, and it seemed a bit speculative to make much of it so far in advance. But others noticed this fact too — and were faster on the trigger about it. Like the AP:
Supreme Court Justice John Paul Stevens has hired fewer law clerks than usual, generating speculation that the leader of the court’s liberals will retire next year.
If Stevens does step down, he would give President Barack Obama his second high court opening in two years. Obama chose Justice Sonia Sotomayor for the court when Justice David Souter announced his retirement in May.
Souter’s failure to hire clerks was the first signal that he was contemplating leaving the court….
Indeed. We started the speculation about Justice Souter’s retirement back in April 2009, over at Underneath Their Robes, based in part on his lack of law clerk hiring (and based in part on a sighting of him with Senator Pat Leahy).
But back to Justice Stevens:
In response to a question from The Associated Press, Stevens confirmed through a court spokeswoman Tuesday that he has hired only one clerk for the term that begins in October 2010. He is among several justices who typically have hired all four clerks for the following year by now. Information about this advance hiring is not released by the court but is regularly published by some legal blogs.
Cough cough — like Above the Law?
Commentary from expert observers, plus a reader poll, after the jump.
Veteran Supreme Court litigator Tom Goldstein, founder of the renowned SCOTUSblog, had this to say when we reached out to him:
I have been talking to folks for a couple of weeks about this. It certainly is not an accident. At the same time, it is not a commitment to retire. Everyone who sees him says he is doing great. He has the option of the summer of 2011 to retire, pre-election. To me, this is a significant sign that he is considering it, not that he has decided to retire.
Professor Orin Kerr — who correctly read the law clerk hiring tea leaves back in 2005 to predict Justice O’Connor’s retirement, based on original reporting by Underneath Their Robes — offered this commentary to ATL on the Justice Stevens news:
On one hand, the media first started reporting JPS retirement rumors in the 1980s, when I was in junior high. On the other hand, the law clerk hiring clue worked with DHS, and we usually know so little about what the Justices are thinking that this is probably the best we’re likely to get.
The upshot: nobody knows anything (not even the most knowledgeable observers), at least not definitively. Maybe even Justice Stevens doesn’t know for sure when he’ll be retiring.
But this kind of speculation sure is fun, isn’t it? Feel free to continue it, in the comments, and vote in our reader poll below.
(For additional discussion, see, e.g., Robert Barnes’s post at the Washington Post’s 44 blog, Adam Liptak’s piece in the New York Times, Ashby Jones’s post at the WSJ Law Blog, or Orin Kerr’s post at the Volokh Conspiracy.)
Justice Stevens slows his hiring at high court [AP via WSJ Law Blog]
In Staff Move by Justice Stevens, Some See Signal [New York Times]
Justice Stevens Hires Just One Clerk [44: The Obama Presidency / Washington Post]
Justice Stevens Hires One Clerk Instead of Usual Four [Volokh Conspiracy]