A lot of press reports have speculated recently about the possibility that there will be two retirements at the Court in coming months. As best I can tell, no one who follows the Supreme Court closely actually thinks it is going to happen. But that doesn’t stop the speculation.
In that spirit, I’d like to up the ante. Instead of speculating that there may be two Supreme Court vacancies in coming months, I will henceforth speculate that there will be three vacancies in coming months. That’s right, not one, not two, but three vacancies.
What is my evidence that there are going to be three vacancies at the Supreme Court soon? I don’t have any. I just made it up. But since when does that stop people from speculating? The idea is so dramatic that it’s worth speculating just to speculate. So I therefore speculate: There might be three vacancies this summer. That’s right, three vacancies, all at the same time.
Pretty amazing to speculate about, isn’t it? Indeed, I expect to bask in the glory of being the one who introduced the idea of speculating about three vacancies for a while. Go ahead, send me all those in-bound links. Life will be pretty good — that is, until some wiseass comes along and starts speculating about four vacancies. Then no one will remember my modest three-vacancy speculation. Four vacancies — how ridiculous! Seriously, it’s much more likely that we’ll have three vacancies than four vacancies.
To be clear, I’m not saying three vacancies are definite. Or even that it’s likely. But it is in fact theoretically possible that there will be three vacancies at the Supreme Court this summer.
Oren says:
Spot on.
February 19, 2010, 12:54 amJay says:
F*ck it, we’re doing nine vacancies.
(with apologies to The Onion)
February 19, 2010, 12:56 amyankee says:
I don’t think people have been adequately considering all the possibilities. What about the possibility of negative vacancies created by unpacking the Court? Is the White House preparing for Congress to cut the size of the Court to five?
February 19, 2010, 12:58 amMike McDougal says:
I predict 11 vacancies within 6 months of passage of Obama’s court packing plan.
YOU DIDN’T SEE THAT COMING.
February 19, 2010, 12:58 amJ. Aldridge says:
This is no different than wild NBA trade “rumors” before the trade deadline.
I think Dems prefer there to be vacancies now before Republicans take over, but I just don’t see it. I think the next justice will retire on a stretcher.
February 19, 2010, 1:12 amJasonF says:
Prediction: 23 vacancies this summer. The existing 9 justices will retire and the court will be expanded to 15 justices. Then 8 of the 15 new justices will retire and be replaced.
February 19, 2010, 1:28 amyankee says:
And as long as we’re speculating, what appointments might we see in this perfect storm three-vacancies scenario? Could this be Obama’s chance to appoint someone with a nontraditional background, like Ben Bernanke or Steve Jobs?
February 19, 2010, 1:28 amMike says:
You’re the guy in “There’s Something About Mary” who came up with 7-minute Abs.
February 19, 2010, 1:36 amd says:
I’ve heard some vicious rumors, only one of which I made up myself, that if nominated, some Volokh bloggers would turn down the vacancy because they prefer the comfort of the ivory tower. Reportedly, this preference is due to unsuccessful attempts to blog elsewhere.
February 19, 2010, 1:43 amJames N. Gibson says:
I hate agreeing with Aldridge, but he’s right: on a stretcher with a sheet over the face.
February 19, 2010, 1:58 amrpt says:
Take over what? They are already in charge, or can’t you tell from the last twelve months?
February 19, 2010, 2:06 amD.R.M. says:
With Stevens, Ginsburg, and Breyer all gone the result is a court where Thomas, Scalia, Roberts, and Alito constitute a majority until two seats are filled. Delaying and obstructing tactics would accordingly strongly reward the right, since it could force the new term to start with a solidly conservative majority.
At the same time, there will be tremendous pressure from the left for Obama to appoint a “true progressive”. This will greatly assist the right in obstruction tactics, since the current political winds would make moderate Democrats wary of any such nominees. One “true progressive” nominee going down in flames could easily force Obama to move his candidates rightward in a desperate effort to fill the seats before a Republican Senate takes over.
The result would be a Court with a second “Kennedy” and the two other justices entering somewhat to the right of Sotomayor. When a Republican replaces Kennedy and Scalia with a Roberts-and-Alito pair in 2013, the result will be a collapse of the legal academy as currently constructed, as a wave of right-wing precedents drive current law professors to resign in disgust.
February 19, 2010, 3:05 amrequired says:
But, but, but… who can Obama pick for 3 vacancies? The whole only having 59 senators now really changes the complexion of the court picking game, and since republicans are already being painted as obstructionists by Obama, there is no great cost to them in actually being obstructionist. With the democratic senators not running for re-election the republicans can even claim it’s principled obstruction to keep senators who are not subject to the voters displeasure from making a decision while the country can wait until after the election later this year. Maybe Clinton or McCaskill could get the 60th vote due to senatorial camaraderie, but other than that, who is unobjectionable enough to get at least one republican senator without losing more than one democratic senator? I’d be surprised to see more than one vacancy and the White House should push for that to be soon, because by this summer it will be too easy for the republicans to argue for principled obstruction – a repeat of the Fortas filibuster.
Of course it would be fun to see Obama talk about how unfair it is to filibuster supreme court nominees after he voted against cloture on the Alito filibuster, so I may be slanting my view in favor of what I would like to see.
edit— when I say Fortas filibuster I am referring to the filibuster when he was appointed to become chief justice in 1968 by President Johnson to prevent Nixon from replacing Warren.
February 19, 2010, 3:52 amTim says:
I don’t think Stevens is quitting this term. Ginsburg I buy. Stevens wants to surpass Holmes for age and time on the court before he retires.
February 19, 2010, 5:35 amleo marvin says:
Randy Barnett — not the wiseass part, just the speculating — and he’ll be right. The new Court will adopt his Privileges or Immunities argument, and he’ll never close comments again. Orin will retire from the law to work full time on challenging Shaun White at Sochi, 2014. I won’t speculate how that turns out.
February 19, 2010, 5:54 amIs the White House Preparing For Three Supreme Court Vacancies This Summer? | Liberal Whoppers says:
[...] more: Is the White House Preparing For Three Supreme Court Vacancies This Summer? [...]
February 19, 2010, 6:04 amAnderson says:
I wish Prof. Kerr had a tag for these “meta-blog” posts, because it would be pretty funny to read them one after another.
February 19, 2010, 7:20 amRyan says:
Three vacancies? Well these three nominees should have unanimous support:
-Eugene Volokh
-Orin Kerr
-Jonathan Adler
And as an alternate:
February 19, 2010, 7:30 am-David Bernstein
apodaca says:
http://www.theonion.com/content/node/33930
February 19, 2010, 7:37 amFantasiaWHT says:
I predict citizens will unite and crash 84 planes into the supreme court while the court is in session, resulting in 9 vacancies in June. They will quickly be replaced, but then all 9 will be captured by Somalian pirates and held for ransom. Those 9 incapacity vacancies will be filled by the end of July, but in August the justices join a suicide cult and all drink the magical spirit kool-aid to join the leader in his spaceship. Then everybody gives up.
February 19, 2010, 7:57 amPete Freans says:
The Justices are well aware of the political climate at the moment, so I think these vacancies will materialize before the November ’10 elections where the Senate is becoming more and more in play.
February 19, 2010, 8:28 amPoster04 says:
Orin – I LOVE this post. Please continue to mock the press. They deserve it.
February 19, 2010, 8:35 amInstapundit » Blog Archive » ORIN KERR: Is the White House Preparing For Three Supreme Court Vacancies This Summer?… says:
[...] ORIN KERR: Is the White House Preparing For Three Supreme Court Vacancies This Summer? [...]
February 19, 2010, 8:50 amalkali says:
I’m guessing 2 1/2 vacancies. Justice Stevens will go part time in order to accommodate tapings of his appearances on Dancing With The Stars.
February 19, 2010, 8:54 amLouie says:
Hey, I am available, and also am part of a constituency that is underrepresented on the Supreme Court: full-time mom [children all in college], former PICU head nurse, blonde, under 55 and not an attorney.
February 19, 2010, 9:28 amRule of Law= Rule of Mom
1. I don’t care who started it, I am finishing it.
2. The answer doesn’t change, no matter how loud you yell
3. Life is not fair. The last time that occurred is when you were 4 years old and I poured all of your juices “even Steven”
4. My favorite: Your time is up.
Martin Weiss says:
it would actually be interesting if judges could go on an ‘injured reserve’ list or be sent to a circuit or district (or traffic) court for ‘rehab’ and a circuit judge could be brought up temporarily
I don’t see that in the cards though
February 19, 2010, 9:31 amTom says:
Let me know how it works out. I may be busy that day having lunch with Queen Elizabeth and Lady Gaga.
February 19, 2010, 9:38 amSarcastro says:
[Gotta say, upon reading the title, I was fooled and saved this to read this morning.]
February 19, 2010, 9:43 amShawn Levasseur says:
All that said, if the White House is prepared for multiple vacancies, good for them.
Better to be prepared for such a situation, than have to scramble at the last second. Hopefully such preparation would translate into better nominees, but I won’t exactly hold my breath on that one.
February 19, 2010, 9:47 amJoe T. Guest says:
In that spirit, I’d like to offer the nation the following proposal:
Civilian life gets the Court’s Justice Ginsburg, Justice Stevens’ expiring contract and future consideration in major Court cases, in exchange for Charles Barkley, some litigation relating to the Americans With Disabilities Act, and a couple 9th Circuit judges to be named later.
This would be a big win for the Court since they’d clear up cap space allowing them to hire a couple new players next year to take them to the promised land – Justice For All – at long last. No longer will it be the “And 1″ principle of the justice system, hotdogging but without substance; instead it will have to get with the system and be a contributor. Also, everybody knows how much the Court likes like ADA cases, they’re a real fan pleaser with detractors and the boosters alike, so they’d get one of them, along with a judge whose impartiality and integrity could not possibly be questioned – even Sir Charles does not know what he will say on any given issue until he’s actually spoken about it, but you can be sure he’ll speak his mind on any given issue.
The people will finally get the intellect that can solve the problem of electronic random number generators not being entirely random – once Justice Stevens’ truly random mind is harnessed to the task, a great electrical engineering dragon will have been slain. The Court will actually be bound to considering the People’s interest as a whole for once, and the People will also receive a gifted opera supernumerary in Justice Ginsburg, who will be able to concentrate on that profession full time. Law students will be benefitted by the trade involving the third team, the Ninth Circuit, because it will take a couple law professors out of the academy where they pester students, and put them on the bench where they can stick to the harmless business of pestering commerce, law enforcement, or each other.
This would be a win-win deal for everybody but I doubt the league would go for it. Lately they only seem to be into ratifying ludicrous trades, so it’s more likely we’d see a situation that they just blow up the Court, trade all the justices to some hopeless municipal traffic court in exchange for minimum wage magistrates and an aged baliff, and start rebuilding the Court all over again.
February 19, 2010, 9:51 amSammy Finkelman says:
We had two at the same time in 1968/69 (Chief Justice Earl Warren retiring – postponed a year and then Fortas resigning.
Also in 1971 0 Both Hugo Black and Joh Marshal Harlan quitting in the late summer of 1971 – Justice Black died a week later.
2005: Chief Justice rehnquist deciding he can last another year – then Sandra Day O’Conner taking the opportunity to retire (The Justices don’t want to have more than one vacancy at a time) then after Sandra ODay O’Conner retired effective with the appointment of her successor (like Earl warren in 1968) Rehnquist dies and Roberts is switched to Chief Justice.
It woud of vourse be prudent for a White House to plan on at least 3 nominees (They would also have to take into account that a potential nominee might back out or be discoverd to have some kind of background check problem (The background check business is one reason that all nominees recently have been federal judges – they’ve already gone through a background check and sitting judges tend not to acquire any problems. Any presidential appointee still serving would also be easy.
They don’t have to be like Bernard Kerik to have problems and I don’t thik we know what percentage of potential nominees might turn oput to have problems. Several of Obama’s Cabinet nominees did/
And that is just legal problems, or some other virtually automatic disqualifications. then they go into all recorded public statements, and someone’s personal life.
February 19, 2010, 9:51 amAdam says:
Nobody’s comin’ up with six! Who works out in six minutes? You won’t even get your heart going… not even a mouse on a wheel!
Seven’s the key number here! Think about it! Seven-Elevens! Seven dwarfs, seven, man, that’s the number! Seven chipmunks twirlin’ on a branch, eating lots of sunflowers on my uncle’s ranch! You know that old children’s tale from the sea! It’s like, you’re dreaming about Gorgonzola cheese when it’s clearly Brei time, baby!
Step into my office! Because you’re f*ckin’ fired!
February 19, 2010, 9:51 amMike McDougal says:
Hold on. I think this one deserves more consideration. It seems plausible.
February 19, 2010, 10:00 amAnton says:
And you think this isn’t a game? Those 3 corpses hung-on through the Bush administration on the possibility that they’d be able to pass their vacancies on to a Democratic president. It’s a bit obvious (not to mention potentially very destructive), no?
February 19, 2010, 10:01 amMark Field says:
I have this image of you dictating this post in the voice of Count Chocula: “Vun, two, three vacancies. Bwahaaahaaahaaa.”
February 19, 2010, 10:04 amRussell says:
A lot depends on Ginsburg getting that pornstar job.
February 19, 2010, 10:05 amButternut says:
Three!!!
Will make handicapping a bit more difficult for that all important secession case that will no doubt come up soon.
February 19, 2010, 10:21 amMartyA says:
Where’s the line on who will be named to fill each of these three vacancies?
February 19, 2010, 10:49 amWith an administration as clueless and corrupt as this one, one approach would be to identify who could offer Obama something worth enough to Obama to get a Supreme Court seat as repayment. How about a Republican senator who claimed he could deliver ObamaCare or cap & trade or union slavery or the first two nominees?
Chicago guys always like cash. Does Obama need an Irish cottage? How about the ony copy of Obama’s real birth certificate? Etc, etc…
Orin Kerr Doubles Down | Little Miss Attila says:
[...] to be more precise, triples down: What is my evidence that there are going to be three vacancies at the Supreme Court soon? I [...]
February 19, 2010, 10:50 amCJColucci says:
Stevens’s age and Ginsburg’s health make it entirely reasonable to speculate on those two vacancies. That no Supreme Court sources seem to have been behind the stories isn’t too important; the logic of preparing for those two vacancies would be clear enough to whatever White House or DOJ people are involved in those things and they could very well be preparing for them. Now, if no one from those sources is behind the speculation, then either there is no preparation going on (which might be a story in itself, if a small one) or someone is basing a “preparation” story on the logic of the situation rather than factual information.
February 19, 2010, 10:51 amSnaphappy says:
Orin, you forgot to mention the most interesting possibility for a three-vacancy scenario: That the third Justice to retire will be Thomas, Scalia, or Kennedy.
Having read this comment outloud just now, I have heard the following rumors:
Kennedy wants to continue his study of foreign law by studying in Tibet for the next seven years;
Scalia is expected to be shamed into retirement by the revalation that he hs a second wife by which he has ten additional illegitimate children; and
Thomas is expected to be named the new Dean of Yale Law School.
I’m not saying any of these things are true, but I have heard them said and any one of them could theoretically be true.
February 19, 2010, 10:52 amSnaphappy says:
Funny you should say that, I have also heard (just now) that Obama might parachute himself into one of the expected retirements.
February 19, 2010, 10:54 amGranus says:
Orin,
This is more fun than a congressional hearing. I propose a “speculation of the week.”
Otherwise, I nominate Louie (9:28am post) for the supreme court. Soundslike she probably did a wonderful job with her kids, she should bring them along so we’ll have a strong “bench.” (sorry, couldn’t resist.)
February 19, 2010, 11:06 amBill Woods says:
One vacancy would be more exciting than three — if it’s Kennedy.
February 19, 2010, 11:11 amyankee says:
Tibet? I heard he was going to Bruxelles to write a monograph on how to impose the Traité de Lisbonne on the U.S.
February 19, 2010, 11:16 amjosh says:
Throw in a set of steak knives and you get a fourth justice ABSOLUTELY FREE!
February 19, 2010, 11:20 amJoe says:
A lot of press reports have speculated recently about the possibility that there will be two retirements at the Court in coming months. As best I can tell, no one who follows the Supreme Court closely actually thinks it is going to happen. But that doesn’t stop the speculation.
Stevens’ retirement is a very reasonable assumption. The Administration is prepared for another one since given Ginsburg’s health and the usefulness of being prepared if something unexpected happens (yeah, that’s silly) makes it reasonable to have two. Also, who knows if the first choice will have some problem at the last minute? This has been known to happen. And, thus, the reports notes the Administration is preparing for the possibility of two vacancies.
So, yawn.
February 19, 2010, 11:44 amDave N. says:
Heck, I’ll go out on a limb. The ENTIRE federal judiciary will simultaneously resign out of a sense of Obama’s sheer awesomeness and the White House is very busy lining up replacements for everyone.
I am expecting the following prepared statement from Chief Justice Roberts: “We just couldn’t keep up with his brilliance. We are all humbled. So we will quietly go now.”
February 19, 2010, 11:44 amapodaca says:
AJILF?
February 19, 2010, 11:48 amSteph says:
I only know one thing whoever he choses will be found to owe back taxes.
February 19, 2010, 11:59 amzippypinhead says:
I am betting on 9 vacancies. After all, as everyone who has been following the travails of the late, not-so-great Washington Wizards knows, dumping your whole team for future draft choices is all the rage! Especially now that Justice Stevens has to face that awkward illegal handgun charge…
Incidentally, kudos to Professor Kerr on this one: He accomplished something nobody else has ever been able to do on this or any other blog, to wit, authoring a post that elicited the following comment:
February 19, 2010, 12:15 pmBrian G. says:
And I heard that it is possible that David Souter may move away from his Mother in the next decade or two.
February 19, 2010, 12:16 pmGregS says:
Given that Obama is looking more and more like a lame-duck one-term president, it wouldn’t be all that surprising if he decided to nominate himself to the Supreme Court, or resign from the presidency in a deal with Joe Biden, where the new President Biden would then nominate him. Yes, it’s a bizarre suggestion, but with this administration we’ve come to expect the bizarre.
February 19, 2010, 12:16 pm1040 says:
This comment wins the thread. Hopefully, GregS doesn’t decide to drive a car into SCOTUS to express his opposition to the idea.
February 19, 2010, 12:18 pmSenator Christmas says:
Would Obama have to resign before nominating himself? He’d have to resign once he was confirmed, of course, but couldn’t he still be President during the nomination hearings?
February 19, 2010, 12:57 pmyankee says:
I don’t see why not. Actually, I think MartyA’s hypothetical Republican Senator could probably vote for their own confirmation, provided they resign after they vote but before the vote is concluded.
February 19, 2010, 1:23 pmSteve says:
Dare to dream: Roberts, Thomas, and Scalia all retiring this summer.
*wipes tears of hope”
February 19, 2010, 1:36 pmChris Travers says:
And the three retiring justices will be Thomas, Scalia, and Roberts…..
February 19, 2010, 2:14 pmLymis says:
Simon Cowell is leaving American Idol, so he’d be available.
Just saying.
February 19, 2010, 3:06 pmMichael Alexander says:
This reminds me of Conflict of Laws when my proffessor was explaning the “better rule” analysis promoted by Professor LeFlar – the theory that when confronted with two possible laws that apply in a particular situation, the court should pick the “better rule.” My professor then suggested he would advance a new theory called the “best rule” analysis – that a court should not stop at the “better rule,” but a court should consider all laws and then select the “best rule.” Maybe one of these three new justices will adopt this approach?
February 19, 2010, 3:26 pmBC says:
A plan with no drawbacks!
February 19, 2010, 4:05 pmAF says:
Orin:
Funny post, but unfortunately these guys are beyond parody.
February 19, 2010, 4:23 pmShelbyC says:
Er, minor flaw in that plan. :-).
February 19, 2010, 5:07 pmChris Travers says:
So we could replace Scalia, Thomas, and Roberts with Simon Cowell, Tina Fey, and Lindsey Lohan…..
I’m just sayin…
Or maybe we could appoint Microsoft, Oracle, and IBM for those who think that corporations should be able to hold office….
February 19, 2010, 6:26 pmDennis Nicholls says:
GregS is not alone in left field….WaPo had an op-ed piece just today about Barry going onto the Supremes. Taft went onto the Supremes after being President, I don’t know why Obama is such a stretch.
Any President worth his salt has an on-deck list of several candidates for the Supremes. They have to.
Here’s a more clever thought. Barry is worried about his low poll numbers which give Hillary a chance to challenge him for the nomination. Work a deal with Hillary by putting Bill on the Supremes.
February 19, 2010, 7:18 pmJeff R. says:
Dennis: Cutting out the middle-man and putting Hillary herself on the Court works better. For one thing, you don’t have to trust her to stick to the deal afterward…
February 19, 2010, 8:42 pmBrett Bellmore says:
Listening to a recording of your own voice doesn’t count…
February 19, 2010, 8:58 pmThrobert McGee says:
I’m picturing a group photo shot gone catastrophically awry, à la King Ralph, and then John Goodman is appointed Chief Justice because it turns out he’s the only person in the entire country related to all nine of them. It would rock, man!
February 19, 2010, 9:12 pmDeezrightwingnutz says:
Seven…minute…abs
February 19, 2010, 9:16 pmJohn Herbison says:
Is Scalia still going hunting with Dick Cheney?
February 19, 2010, 10:17 pmDrib says:
True. Right now she only does cameo roles in Bang Bros.
February 20, 2010, 1:36 amDonna B. says:
One could say Taft was much more substantial than Obama.
February 20, 2010, 2:03 amBob in SeaTac says:
Yeah, Obama gets away from that birth certificate dilemma. And from his foreign student scholarship at Oxcidental.
But would he have to release his grades at his various colleges?
February 20, 2010, 5:05 pmChris Travers says:
I know Taft has been accused of being one of our “larger” presidents……
February 20, 2010, 5:22 pmLouie says:
Thank you for your support, and I humbly accept the nomination.
February 21, 2010, 1:50 pm