New York Times

September 3, 2009
Supreme Court Memo

A Justice Slows His Hiring, and Some Wonder About His Future

By ADAM LIPTAK

WASHINGTON — A Supreme Court clerkship is a glittering prize and the ultimate credential in American law, one coveted by the top graduates of the best law schools. Until recently, though, only connoisseurs of ambition and status followed the justices’ hiring process closely.

It turns out those hiring decisions may be a sort of early warning system for hints about the justices’ retirement plans. “We’ve started tracking Supreme Court hiring in real time,” said David Lat, the founder of Above the Law, a legal blog.

Justice David H. Souter’s failure to hire clerks this spring accurately signaled his decision to step down. On Wednesday, the court confirmed that Justice John Paul Stevens, who is 89, has hired only one clerk, instead of the usual four, for the term starting in October 2010. That ignited speculation that Justice Stevens may be planning to step down next summer.

Or it could merely mean that he is keeping his options open. There is, of course, nothing to prevent Justice Stevens from hiring additional clerks later on. The newest member of the court, Justice Sonia Sotomayor, hired four clerks in short order after her confirmation last month.

The alternative is to hire 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. “Justice Stevens would have to be pleased at the thought that his successor would be appointed by Barack Obama, an African-American lawyer from the city of Chicago,” he said.

Justice Stevens has deep roots in Chicago and frequently hires law clerks from the law schools of the University of Chicago, where Mr. Obama taught and where Justice Stevens went to college, and of Northwestern, where the justice attended law school.

Justice Stevens was a prominent lawyer in Chicago when President Richard M. Nixon appointed him to the federal appeals court there in 1970. President Gerald R. Ford elevated Justice Stevens to the Supreme Court in 1975.

Though appointed by Republican presidents, Justice Stevens over time became a leader of the court’s liberal wing. But he likes to say that he has not become more liberal with the passing years. It is the court, Justice Stevens says, that has moved to the right.

Early in his tenure, his jurisprudence was viewed as idiosyncratic. More recently, he has written important majority decisions in cases involving executive power and the death penalty.

Should Justice Stevens retire, President Obama would have his second opportunity to nominate a justice to the court, matching the number of openings the last two Democratic presidents, Bill Clinton and Jimmy Carter, were able to fill over a combined three terms in office.

But the replacement of Justice Stevens with another liberal justice would not alter the basic ideological dynamic on the court. Indeed, the loss of Justice Stevens, a master strategist, would probably leave the more liberal justices in a somewhat weakened position.

Under the court’s procedures, the senior justice in the majority has the power to assign the writing of the majority opinion. That justice is often Justice Stevens, the longest-serving member of the current court, with almost 34 years of service. He is junior in the court’s hierarchy only to Chief Justice John G. Roberts Jr., a member of the court’s conservative wing.

Confirmation from the court that Justice Stevens has hired only a single clerk was first reported by The Associated Press.

Justices typically try to space out their retirements. Even if Justice Stevens’s decision to hire a single clerk indicates a tentative inclination to step down, he could well change his mind.

Justice Ruth Bader Ginsburg underwent surgery for pancreatic cancer in February, prompting speculation that she might consider retirement. But Justice Ginsburg, who is 76, did not miss a day on the bench, has maintained an active public schedule and has said she intends to continue to serve for some time.

It used to be relatively commonplace for justices to hire clerks far in advance and later dash their hopes with news of retirement. That could be quite a blow to a young ego, given the life-altering cachet of the position.

On Above the Law, Supreme Court clerks are called the Elect.

“Just the prestige and the Good Housekeeping seal of approval that goes with it is the highest distinction you can get as a young lawyer,” Professor Eisgruber said of the job. “It opens a lot of doors.”

Peter J. Spiro, now a law professor at Temple University, recalled hearing that Justice William J. Brennan Jr. was stepping down for medical reasons just a week before his clerkship was to have begun in 1990.

“Twenty years later, I recognize it as a rich kid’s problem in the grand scheme of things,” Professor Spiro said, adding that Justice Brennan was quite gracious. “At the time, it was extremely disappointing.”

Professor Spiro ended up clerking for Justice Souter, who succeeded Justice Brennan. “I lucked out in the end,” he said. “I had a wonderful year.”