Courts, Politics, Supreme Court

Will Justice Breyer Retire? Reading The Clerk Hiring Tea Leaves

Law clerk hiring can offer hints into a justice's retirement plans; what does Justice Breyer's tell us?

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Justice Stephen Breyer (Photo by Chip Somodevilla/Getty Images)

Ed. note: This column represents a combination of two different posts that originally appeared on Original Jurisdiction, the latest Substack publication from David Lat. You can learn more about Original Jurisdiction on its About page, and you can register to receive updates through this signup page.

When will Justice Stephen Breyer retire from the U.S. Supreme Court? It’s a question on the minds of many Americans who understand the power and importance of the Court in resolving some of the most critical issues faced by the country.

At the current time, there’s a 6-3 conservative majority on SCOTUS. If Justice Breyer, 82, were to retire sometime soon, President Joe Biden could replace him with another liberal justice, whom the current Democratic Senate could confirm, God (of the Senate) Joe Manchin willing. But if Justice Breyer decides to stick it out at the Court, and then the Democrats lose the White House, the Senate, or both, he could end up leaving the Court at a time not of his choosing — e.g., because of death or disability — and might then be replaced by a conservative justice, giving conservatives an overwhelming 7-2 majority. Fearing this prospect, many commentators on the left have urged Justice Breyer to retire as soon as possible.

What do we know right now about Justice Breyer’s retirement plans? Bupkis. When Dahlia Lithwick of Slate asked him about his retirement plans in December, he responded, “Well, I can’t answer this question because it is too close to something that is politically controversial. I mean, eventually I’ll retire, sure I will. And it’s hard to know exactly when.”

Thank you, Justice Breyer. That was about as illuminating as one of your hypothetical questions at oral argument.

They say that actions speak louder than words, so let’s look at Justice Breyer’s actions: specifically, his hiring of law clerks, the brilliant young lawyers who assist him with his judicial duties and change over with each new Term of the Court. In the past, some Supreme Court justices have telegraphed their retirement plans through their law clerk hiring practices (intentionally or not).

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A brief bit of background. As an active justice, Justice Breyer is entitled to four law clerks to assist him with his work at the Court. As a retired justice, on the other hand, he would be entitled to only one law clerk. So whether he has hired zero clerks, four clerks, or some number in between could be an early indicator of his retirement thinking.[1]

Timing matters as well. The Supreme Court’s Term starts on the first Monday of October, which is why, for example, the current judicial year (2020-2021) is referred to as October Term 2020. Most justices who are planning on sticking around — including Justice Breyer, in years past — hire clerks a year or more in advance of the start of each new Term in October. Since we are now in April 2021, we would expect Justice Breyer, based on the general practice of the justices and his own past practice, to have already hired four clerks for October Term 2021.

(Some justices hire law clerks even farther in advance. For example, Justice Kavanaugh has already hired law clerks for October Term 2023.)

How does law clerk hiring change when justices are planning on retiring? Let’s look at the four most recent justices to retire from the Court — Justices Sandra Day O’Connor, David H. Souter, John Paul Stevens, and Anthony M. Kennedy — and how they handled clerk hiring prior to announcing their retirements.

Justice O’Connor announced her retirement on July 1, 2005. As of April 2005, she had hired just three clerks for October Term 2005. In June 2005, Professor Orin Kerr pointed out her “apparent failure to hire a fourth law clerk for the new Term” and speculated that maybe she was thinking of retiring — which turned out to be correct. So in Justice O’Connor’s case, her law clerk hiring did offer a window into her plans.

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Justice Souter announced his retirement on May 1, 2009, (although Nina Totenberg of NPR broke the news on the evening of April 30). As of April 2009, he had hired no law clerks for October Term 2009. Although Justice Souter tended to be the last justice to hire clerks during his time on the Court, generally hiring less than a year in advance, he was usually done by April for the October Term. So his having hired zero clerks by April was a sign — an accurate one — that he was eyeing the exit.

Justice Stevens announced his retirement on April 9, 2010. As of September 2009, he had hired just one clerk for October Term 2010 — and the Court even confirmed to the media his hiring of a single clerk for that next Term. Adam Liptak of the New York Times reported:

The alternative [to hiring just one clerk] is to hire [multiple] clerks now for a job that might evaporate later, something Justice Stevens would not do lightly, people who know him said.

“Justice Stevens is a man who cares deeply about treating people with respect,” said Christopher L. Eisgruber, the provost of Princeton University, the author of The Next Justice: Repairing the Supreme Court Appointment Process and a former clerk to Justice Stevens.

There is at least some reason, Professor Eisgruber said, to think the justice intends to retire relatively soon.

So Justice Stevens hired just one clerk, the single clerk he was entitled to as a retired justice, before retiring. Once again, law clerk hiring gave accurate insight into his retirement plans.

This brings us to Justice Kennedy, who announced his retirement on June 27, 2018. At the time of his announcement, he had hired four law clerks for October Term 2019 — clerks he actually had in place by December 2017, if not earlier. So of the past four justices to leave the Court through retirement, he was the only one to have hired a full clerk class before peacing out — and there are reasons to believe he was anomalous.[2]

So what does this history tell us? Of the last four justices to retire, three engaged in abnormal law clerk hiring activity prior to stepping down. This suggests that law clerk hiring, while not infallible, is often a decent indicator of a justice’s retirement plans.

This brings us to Justice Breyer. He has hired four law clerks for the next Term, October Term 2021. We know three of them:

  • Elizabeth Deutsch (Yale 2016/Pillard/Oetken (S.D.N.Y.))
  • Erika Hoglund (Stanford 2019/Thomas (9th Cir.)/Chhabria (N.D. Cal.))
  • Joel Wacks (U. Chicago 2018/McKeown/C. Breyer (N.D. Cal.))

Upon information and belief, the “missing” Breyer hire is a woman who graduated from Yale Law School. If you have her information, please email me: davidlat@substack.com.

Hiring a full complement of clerks — with the last clerk to be hired, Erika Hoglund, getting hired within the past few weeks — suggests to me that Justice Breyer plans on sticking around. If I had to toss out numbers, I’d say there’s a 70-30 chance that Justice Breyer remains on the Supreme Court for at least one more Term, October Term 2021.

Some of you might have noticed that Justice Breyer gave a recent speech at Harvard Law School about the future of the high court. Do his remarks shed any additional light on his plans? Specifically, Justice Breyer returned to his alma mater last Tuesday to deliver the annual Scalia Lecture. In his nearly two-hour talk, entitled “The Authority of the Court and the Peril of Politics,” Justice Breyer sounded skeptical notes about so-called “court packing,” urging folks inclined to support structural changes to the Court to “think long and hard before embodying those changes in law.” He repeatedly emphasized the difference between law and politics and noted that the conservative majority at the Court frequently ruled against former President Donald Trump and refused to get involved with the 2020 election.

The upshot of his remarks: the Supreme Court is not as political and politicized an institution as many people think. And if that’s the case, justices should retire for personal reasons — e.g., they no longer feel they can do the job — as opposed to political reasons having to do with control of the White House and Senate. So this strikes me as a preemptive defense by Justice Breyer of his decision to stay on the Court, directed at individuals and groups like, say, Demand Justice:

Of course, this is all just conjecture on my part, and I must offer the standard disclaimers. As mentioned earlier, Justice Kennedy hired a full complement of clerks and then retired anyway, so Justice Breyer might very well do the same.

At the end of the day, I rely on you, my wonderful readers, for important information and updates about topics like SCOTUS clerk hiring. If you know about hires (whether by Justice Breyer or others) that don’t appear in my prior roundup and weren’t already tweeted from @SCOTUSambitions, please email me: davidlat@substack.com. Thanks!

FOOTNOTES:

[1] What do law clerks to retired justices do? They work with their retired bosses on various projects — e.g., assisting justices who sit with lower courts (as Justices O’Connor and Souter did in retirement), helping out with speeches or articles — and they also get farmed out to the chambers of an active justice to work on cases alongside that justice’s clerks.

[2] What explains Justice Kennedy’s hiring four clerks prior to retiring? Two things. First, as subsequent reporting later revealed, he was genuinely on the fence about retiring, for months leading up to his final decision. Retirement was on his mind; in fact, he warned the folks he gave clerkship offers to that he might be retiring. But he didn’t completely make up his mind until fairly late in the game, and hiring a full set of clerks allowed him to keep his options open.

Second, Justice Kennedy was one of the most media-conscious of the justices. He cared quite a bit about his press coverage, he was conscious of how he was being watched by the press, he vigorously pushed back on retirement rumors back in 2016 — and I don’t think he liked the idea of tipping his hand on something as important as his retirement through something as mundane as law clerk hiring. So he decided to fake us all out by hiring four clerks. (And those four clerks all wound up fine, in case you’re wondering; consistent with the Court’s tradition surrounding “orphaned” law clerks, places were found for them in the chambers of other justices.)

DBL square headshotDavid Lat, the founding editor of Above the Law, is a writer and speaker about law and legal affairs. You can read his latest writing about law and the legal profession by subscribing to Original Jurisdiction, his Substack newsletter. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. Before entering the media and recruiting worlds, David worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at davidlat@substack.com.

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