O’Connor and Souter have been sitting as appellate court judges, as is common, but for private practice, I’d guess Fortas.
Edit: Arthur Goldberg, nice. I suppose the answer turns on whether you mean “most recent” to be most recently retired or most recently employed as a lawyer.
Powell did not. Fortas seems to be the most likely candidate; in more recent decades, retirement prior to decrepitude and near-complete incapacity has become quite rare. (Although I suppose the last two retirements have broken with that trend to an extent.)
ShelbyC: Heh.I wonder what it’s like being a judge and having a former justice argue in front of you?
Goldberg argued Curt Flood’s case before the Supreme Court in Flood v. Kuhn. A few Court observers (whoever the 1972 equivalent of Nina Totenberg would be, I suppose) said it was among the worst oral arguments they’d ever seen.
Justice Whittaker. Justice Goldberg retired from the Court to become ambassador to the UN. Later, he went to private practice. Whittaker “retired” after having a nervous breakdown, but initially maintained his title as a Justice and sought to sit on the lower courts by designation (what we would call senior status on the coa or district court). Chief Justice Warren, who was convinced that Whittaker was crazy, refused to give him designations so he retired, retired and went straight to private practice.
EDIT: I just re-read the question, and it was not phrased as I thought it was, so I guess Goldberg is the right answer. But my answer is correct in the retired and then directly went to private practice category.
ShelbyC: Heh. I wonder what it’s like being a judge and having a former justice argue in front of you?
The big whammy example is of course Justice/Chief Justice Charles Evans Hughes. As an Associate Justice, he wrote for the Court in Dr. Miles. Then he went on to argue (successfully) as a lawyer representing Colgate that it should be read narrowly, before returning to the Court as Chief.
What sort of salary would a part-time former SCOTUS justice be able to command in private practice? Seven-figures seems within reach. If so, it’s odd that more of them don’t try to take that route after a good stay on the bench.
Is deciding Supreme Court cases with eight other people really that much better than arguing and briefing the same cases with associates who were former COA and SCOTUS clerks?
I recall reading that Chief Justice Roberts made over $1 million a year in the year prior to joining the Court. I think it was in Jeffrey Toobin’s “The Nine”.
Mike McDougal: What sort of salary would a part-time former SCOTUS justice be able to command in private practice?Seven-figures seems within reach.If so, it’s odd that more of them don’t try to take that route after a good stay on the bench.Is deciding Supreme Court cases with eight other people really that much better than arguing and briefing the same cases with associates who were former COA and SCOTUS clerks?
Mike McDougal: What sort of salary would a part-time former SCOTUS justice be able to command in private practice? Seven-figures seems within reach. If so, it’s odd that more of them don’t try to take that route after a good stay on the bench.
Is it really so odd? If they were the type of people who cared more for salary than for prestige, presumably they would have directed their considerable efforts towards advancement in private practice from the beginning of their careers.
“Goldberg argued Curt Flood’s case before the Supreme Court in Flood v. Kuhn. A few Court observers (whoever the 1972 equivalent of Nina Totenberg would be, I suppose) said it was among the worst oral arguments they’d ever seen.”
That honor is generally accorded Richard Nixon’s argument in Time v Hill.
When I was in law school — before Chief Justice Rhenquist imposed some discipline on the Supreme Court bar — I used to spend all my spare time over at the Court listening to arguments. Some of them were truly atrocious; the worst was one in which two estates lawyers (neither of which seem to have ever argued an appeal) argued over the constitutionality of a limitation on a bequest to a church shortly before death. One of the justices fell asleep and snored; another was pointedly doing the crossword puzzle.
I don’t know if Orin was trying to elicit this trivium or not, but Abe Fortas resigned from the Court in 1969, argued before the Court on March 22, 1982, and died exactly two weeks later, April 5, 1982. On June 7, 1982, the Court ruled unanimously in favor of appellee Popular Democratic Party [of Puerto Rico], handing a posthumous victory to Fortas and a rare defeat to a giant of the Supreme Court Bar, Philip Lacovara, who had argued the case against Fortas. See 457 U.S. 1.
Following up on the comment above by DJ, do Supreme Court Justices practice law, or do they practice something else? Perhaps Orin’s blog post was intended to say “private practice of law” rather than simply “practice of law.”
Anon21: Is it really so odd? If they were the type of people who cared more for salary than for prestige, presumably they would have directed their considerable efforts towards advancement in private practice from the beginning of their careers.
I recognize that they like the power and prestige. I think it’s odd that their practice of not practicing again is so consistent.
That would be awesome if Radar Online had the scoop on this. . . . Next, US Weekly breaks news on Obama’s latest set of appointments to the district courts.
Re. the Roberts resignation rumor, a top Court source says “This is not happening.” I hope it’s not happening, because I think Chief Justice Roberts is very astute.
I thought the reports are that Nixon did fine before the Supreme Court and was no where near the worst advocate ever.
Former Solicitor General Paul Clement is supposedly making several million a year in his private gig. I would imagine that Roberts could get something similar if he wanted to.
“Update: RadarOnline.com has obtained new information that Justice Roberts will NOT resign. The justice will be staying on the bench.”
To be honest, I was depressed by Roberts’ remarks from the bench this week in McDonald v. Chicago, and I hope he re-thinks. But he’s a much better judge than Obama would ever think of appointing.
I’m still waiting for Prof. Kerr to say that it was just an accident of timing that he posted this question when he did. Until then, I’ll be engaging in a little conspiratorial daydream that Prof. Kerr’s vast cabal of former Supreme Court clerks is a step ahead of the news.
DJ, perhaps Prof. Kerr brought it up because NBC just picked up a pilot (from Conan O’Brien’s production company, no less) about a Supreme Court justice who quits to start his own law practice.
The worst argument before the court had to be by Jay Floyd, the attorney who argued for Wade in Roe vs. Wade in the first argument. After Roe’s attorney, Sarah Weddington, sat down, Floyd got up, and the first words out of his mouth were, as best I can remember, “It’s an old joke, but when a man gets in an argument with a beautiful woman, the woman always gets the last word.” Repeat that in the longest, drawliest, Texas twang you can come up with, and you’ve basically nailed the high point of one of the worst arguments I’ve ever heard–in or out of court.
With regard Greg’s comment, a justice of the AZ Supreme Court (and remember that Sandra Day O’Connor came from Division One of the AZ Court of Appeals) was told by her that the arguments in the Supreme Court were generally worse than those in Division One. By the time cases got to SCOTUS, the State AGs wanted to argue the cases themselves, and they were politicians rather than lawyers, and knew how to win campaigns but not appeals. “In Division One, we heard from underprepared lawyers; in the Supreme Court we hear from underprepared politicians. I’ll take the unprepared lawyer every time.”
BABH says:
Fortas?
March 3, 2010, 11:51 pmcboldt says:
My guess is O’Connor
March 4, 2010, 12:03 amHadur says:
Possibly Arthur Goldberg?
March 4, 2010, 12:03 amShelbyC says:
Heh. I wonder what it’s like being a judge and having a former justice argue in front of you?
March 4, 2010, 12:13 amMatt says:
O’Connor and Souter have been sitting as appellate court judges, as is common, but for private practice, I’d guess Fortas.
Edit: Arthur Goldberg, nice. I suppose the answer turns on whether you mean “most recent” to be most recently retired or most recently employed as a lawyer.
March 4, 2010, 12:20 amJohn Herbison says:
I don’t know. Did Lewis Powell return to practice?
March 4, 2010, 12:31 amAnon21 says:
Powell did not. Fortas seems to be the most likely candidate; in more recent decades, retirement prior to decrepitude and near-complete incapacity has become quite rare. (Although I suppose the last two retirements have broken with that trend to an extent.)
March 4, 2010, 12:39 amloki says:
Souter?
March 4, 2010, 12:46 amU.Va. Grad says:
Goldberg argued Curt Flood’s case before the Supreme Court in Flood v. Kuhn. A few Court observers (whoever the 1972 equivalent of Nina Totenberg would be, I suppose) said it was among the worst oral arguments they’d ever seen.
March 4, 2010, 12:49 amOrin Kerr says:
UVa grad,
You can listen to the argument here, but be prepared to be bored out of your mind.
March 4, 2010, 12:57 amCrazyTrain says:
Justice Whittaker. Justice Goldberg retired from the Court to become ambassador to the UN. Later, he went to private practice. Whittaker “retired” after having a nervous breakdown, but initially maintained his title as a Justice and sought to sit on the lower courts by designation (what we would call senior status on the coa or district court). Chief Justice Warren, who was convinced that Whittaker was crazy, refused to give him designations so he retired, retired and went straight to private practice.
EDIT: I just re-read the question, and it was not phrased as I thought it was, so I guess Goldberg is the right answer. But my answer is correct in the retired and then directly went to private practice category.
March 4, 2010, 2:23 amBRM says:
James Byrnes is also a good answer, although I suppose he may not have gone back to “practicing law”.
March 4, 2010, 2:29 amCrazyTrain says:
Guess I am even wrong about what I thought I was right about. Fortas. D’oh.
March 4, 2010, 2:30 amgwinje says:
Conan O’Brien
March 4, 2010, 5:37 amMartinned says:
The big whammy example is of course Justice/Chief Justice Charles Evans Hughes. As an Associate Justice, he wrote for the Court in Dr. Miles. Then he went on to argue (successfully) as a lawyer representing Colgate that it should be read narrowly, before returning to the Court as Chief.
March 4, 2010, 8:35 amMike McDougal says:
What sort of salary would a part-time former SCOTUS justice be able to command in private practice? Seven-figures seems within reach. If so, it’s odd that more of them don’t try to take that route after a good stay on the bench.
Is deciding Supreme Court cases with eight other people really that much better than arguing and briefing the same cases with associates who were former COA and SCOTUS clerks?
March 4, 2010, 9:39 amDJ says:
If by “practice of law” you don’t mean judging, then Fortas is the answer. I think.
March 4, 2010, 9:41 amCory J says:
I recall reading that Chief Justice Roberts made over $1 million a year in the year prior to joining the Court. I think it was in Jeffrey Toobin’s “The Nine”.
March 4, 2010, 10:46 amAnon21 says:
Is it really so odd? If they were the type of people who cared more for salary than for prestige, presumably they would have directed their considerable efforts towards advancement in private practice from the beginning of their careers.
March 4, 2010, 11:29 amObserver says:
“Goldberg argued Curt Flood’s case before the Supreme Court in Flood v. Kuhn. A few Court observers (whoever the 1972 equivalent of Nina Totenberg would be, I suppose) said it was among the worst oral arguments they’d ever seen.”
That honor is generally accorded Richard Nixon’s argument in Time v Hill.
When I was in law school — before Chief Justice Rhenquist imposed some discipline on the Supreme Court bar — I used to spend all my spare time over at the Court listening to arguments. Some of them were truly atrocious; the worst was one in which two estates lawyers (neither of which seem to have ever argued an appeal) argued over the constitutionality of a limitation on a bequest to a church shortly before death. One of the justices fell asleep and snored; another was pointedly doing the crossword puzzle.
March 4, 2010, 12:18 pmRoy Englert says:
I don’t know if Orin was trying to elicit this trivium or not, but Abe Fortas resigned from the Court in 1969, argued before the Court on March 22, 1982, and died exactly two weeks later, April 5, 1982. On June 7, 1982, the Court ruled unanimously in favor of appellee Popular Democratic Party [of Puerto Rico], handing a posthumous victory to Fortas and a rare defeat to a giant of the Supreme Court Bar, Philip Lacovara, who had argued the case against Fortas. See 457 U.S. 1.
March 4, 2010, 12:23 pmAndrew says:
Following up on the comment above by DJ, do Supreme Court Justices practice law, or do they practice something else? Perhaps Orin’s blog post was intended to say “private practice of law” rather than simply “practice of law.”
March 4, 2010, 12:28 pmGainesvilleGuest says:
Judges do not practice law.
March 4, 2010, 12:53 pmlawstudent says:
Byron White?
March 4, 2010, 12:57 pmLe Messurier says:
Be prepared to factor this in your answers:
Link
March 4, 2010, 1:01 pmMike McDougal says:
I recognize that they like the power and prestige. I think it’s odd that their practice of not practicing again is so consistent.
March 4, 2010, 1:17 pmCrazyTrain says:
That would be awesome if Radar Online had the scoop on this. . . . Next, US Weekly breaks news on Obama’s latest set of appointments to the district courts.
March 4, 2010, 1:17 pmLe Messurier says:
CrazyTrain
Please don’t think that I get my news from Radar Online. I’d be embarrassed to have you think that I did . I picked it up at Drudge along with this:
“TOP COURT SOURCE TELLS DRUDGE: ‘THIS IS NOT HAPPENING… NEWS TO ME’… DEVELOPING…”
March 4, 2010, 1:26 pmAndrew says:
Re. the Roberts resignation rumor, a top Court source says “This is not happening.” I hope it’s not happening, because I think Chief Justice Roberts is very astute.
March 4, 2010, 1:27 pmdll111 says:
I thought the reports are that Nixon did fine before the Supreme Court and was no where near the worst advocate ever.
Former Solicitor General Paul Clement is supposedly making several million a year in his private gig. I would imagine that Roberts could get something similar if he wanted to.
March 4, 2010, 1:27 pmAndrew says:
Radar Online has retracted.
“Update: RadarOnline.com has obtained new information that Justice Roberts will NOT resign. The justice will be staying on the bench.”
To be honest, I was depressed by Roberts’ remarks from the bench this week in McDonald v. Chicago, and I hope he re-thinks. But he’s a much better judge than Obama would ever think of appointing.
March 4, 2010, 1:40 pmDJ says:
Even RadarOnline has retracted its scoop. No story here.
But I wonder: Why did Prof. Kerr post this? Does he know something the rest of us don’t?
March 4, 2010, 1:42 pmLe Messurier says:
Ed Morrissey is reporting that Radar OnLine has retracted the story. Nothing happening here. Just move along.
March 4, 2010, 1:42 pmDJ says:
I’m still waiting for Prof. Kerr to say that it was just an accident of timing that he posted this question when he did. Until then, I’ll be engaging in a little conspiratorial daydream that Prof. Kerr’s vast cabal of former Supreme Court clerks is a step ahead of the news.
March 4, 2010, 2:34 pmJimmyL says:
DJ, perhaps Prof. Kerr brought it up because NBC just picked up a pilot (from Conan O’Brien’s production company, no less) about a Supreme Court justice who quits to start his own law practice.
The Above the Law story came out yesterday, but apparently this was reported back in January (Hollywood Reporter).
March 4, 2010, 3:47 pmDJ says:
Still waiting for Prof. Kerr to squelch my desperate attempt to get an internet meme regarding an imminent Roberts retirement rolling…
March 4, 2010, 3:57 pmGreg says:
The worst argument before the court had to be by Jay Floyd, the attorney who argued for Wade in Roe vs. Wade in the first argument. After Roe’s attorney, Sarah Weddington, sat down, Floyd got up, and the first words out of his mouth were, as best I can remember, “It’s an old joke, but when a man gets in an argument with a beautiful woman, the woman always gets the last word.” Repeat that in the longest, drawliest, Texas twang you can come up with, and you’ve basically nailed the high point of one of the worst arguments I’ve ever heard–in or out of court.
March 4, 2010, 5:45 pmOrin Kerr says:
JimmyL is correct.
March 5, 2010, 5:01 pmDave Hardy says:
Bushrod Washington?
With regard Greg’s comment, a justice of the AZ Supreme Court (and remember that Sandra Day O’Connor came from Division One of the AZ Court of Appeals) was told by her that the arguments in the Supreme Court were generally worse than those in Division One. By the time cases got to SCOTUS, the State AGs wanted to argue the cases themselves, and they were politicians rather than lawyers, and knew how to win campaigns but not appeals. “In Division One, we heard from underprepared lawyers; in the Supreme Court we hear from underprepared politicians. I’ll take the unprepared lawyer every time.”
March 5, 2010, 9:47 pmKevin Vlasick says:
LOL – That was an one sided POV. I am sure I have the same view.
August 8, 2010, 1:26 pm