Will O'Connor Retire at the End of the Term? William Kristol speculates that Justice O'Connor may announce that she is stepping down in the next week. We'll know soon enough, of course, but it's worth pointing out that this would explain Justice O'Connor's apparent failure to hire a fourth law clerk for the new Term. This is just speculation, obviously, but it's possible that O'Connor hired three of her clerks before deciding to retire and then decided a) it would be unfair to fill the final slot given that she was retiring and b) she couldn't tell the three she had hired (a group that includes our own Sasha, recall) that she would be retiring, as word would get out. Stay tuned.
Assessing the Supreme Court Short List: On Slate, Emily Bazelon and David Newman summarize the records of judges reputed to be on The Supreme Court Short List. (Hat tip Instapundit.) Some useful background information, though the conventional wisdom (CW) about these matters is often wrong. I also think it is going to be very hard to predict whether any particular Bush nominee is going to be a Scalia-type judicial conservative, or a Thomas-type originalist/federalist. Bazelon and Newman (like most everyone else) pay no heed to the difference. Will the President?

By "judicial conservative" I mean a judge who advocates great deference to the majoritarian legislative branches, and who would enforce only enumerated rights. Such a judge might also be reluctant to enforce even enumerated rights against the states.

By "originalist/federalist" I mean a judge who believes in reading the text according to its original meaning whether that leads to upholding or striking down particular legislation. Such a judge might also be more open to the enforcement of the unenumerated rights against the federal government (via the Ninth Amendment) and enumerated and unenumerated rights against the states (via the Privileges or Immunities Clause).

I do not mean to suggest that either Justice Scalia or, especially, Justice Thomas fit neatly or consistently into one of these categories. And I would not place too much stress on the protection of unenumerated rights in distinguishing one type from the other. Many originalist/federalists are pretty conservative about unenumerated rights. What matters most is the majoritarianism of the "judicial conservative" and the originalism of the "originalist/federalist" as well as the latter's willingness to judicially enforce federalism limitations on Congress. Still, in Troxel v. Granville, Justice Scalia dissented from the protection against a state of the unenumerated right of a parent to raise her child as she saw fit, while Justice Thomas was in the majority.

I have enabled comments for those who have a knowledgeable take on any of these candidates, or on Bazelon & Newman's analysis. (This is not the forum to debate the merits of, or relationship between, judicial conservatism and originalism/federalism.) I am especially interested in learning from those who have knowledge of any of these judges if they think the judge they know to be more "judicial conservative" or majoritarian like Scalia or more "originalist/federalist" like Thomas. When a nominee is selected, I am almost certain to be interviewed, as will other law profs on the VC. We could use as much information on which to base an opinion as possible.
O'Connor Retirement Rumor: Can anyone confirm this? Or is it bogus? (My apologies for calling attention to this if it proves false -- I figure our readers are among those who can say whether it is the real deal or not.)
It's Official: Justice Sandra Day O'Connor has announced that she is retiring. A few more or less serious thoughts, which I plan to add to throughout the morning:

  1. Oddly, Justice O'Connor's letter does not mention the all-important question: what is to happen to Sasha Volokh? Will he get picked up by another Justice? Will he come back to the Volokh Conspiracy? So far the Associated Press hasn't covered this angle yet.

  2. The mystery of the missing 4th SOC clerk is now explained; it was O'Connor herself who was retiring.

  3. The big question now is whether the Chief will announce soon as well. I'm not sure whether SOC's retirement makes the Chief's more or less likely — any thoughts?

  4. Interesting that after years of SOC retirement rumors, she retires after a Term in which most people were looking to another Justice to retire.

  5. When courts apply the "reasonable observer" test in Establishment Clause cases, will they now call up Justice O'Connor in Arizona to ask her what she thinks?

  6. My guess is that we'll have to wait to find out who the Administration will nominate to replace Justice O'Connor. I assume that the Administration's next move depends on whether SOC is the only Justice to retire.

  7. Supreme Court advocacy in the last decade has focused a great deal on trying to understand the mind of SOC, as she was the swing vote in many big cases. That learning has just become obsolete.

  8. Even if Justice O'Connor is gone, we may still hear her name in 1 First Street when lawyers accidentally call Justice Ginsburg "Justice O'Connor."

  9. O'Connor's retirement may shift the Court a lot less than people think. In the big ideological cases of the last Term, Justice Kennedy was the swing vote as often as (or maybe even more often than) Justice O'Connor. Let's assume for now that O'Connor is replaced by a consistently more conservative Justice; even if that's true, the left-of-center Justices presumably still have 4 very reliable votes and a good shot at picking up a 5th vote with Kennedy. Plus, new Justices are hard to predict, and it's often hard to tell whether a new Justice will vote consistently one way or another.

  10. We're likely to hear a lot about the future of Roe v. Wade in coming weeks and months. The common wisdom, assuming no shifts in votes from past cases, is that the 8 remaining Justices include 5 votes for Roe (RBG, SGB, DHS, JPS, AMK) and 3 against (AS, CT, WHR). On the constitutionality of partial-birth abortion bans, the common wisdom is that the 8 remaining Justices split 4 to 4, with Justice Kennedy switching as seen by his vote in Stenberg v. Carhart.

  11. My understanding from press reports is that O'Connor is staying on the Court until her replacement is confirmed. Bush gave some comments from the White House a few minutes ago, and my recollection is that he said he planned to nominate a replacement such that the replacement would be confirmed by the time of the new Term in the fall. Of course, that assumes a timely confirmation process, which may or may not happen.

  12. O'Connor's retirement is a gift to all the commentators who were trying to come up with profound thoughts about the just-completed Supreme Court Term. The Term was actually pretty boring in the end; while there were some interesting cases that offered the Court the opportunity to venture out in some new directions, the Court mostly ended up reaffirming the status quo. Now talking heads can ruminate about Justice O'Connor and her retirement rather than the cases the Court decided.

  13. According to Dana Bash, reporting at CNN, the White House found out about the possible retirement yesterday afternoon, when the Supreme Court Marshal's Office informed the White House Counsel that one of the Justices would be sending a letter to the White House today. The White House didn't know O'Connor was the Justice making the announcement until this morning.
Retirement Blogging: Lost of interesting blogging about the retirement announcement of Justice O'Connor over at Bench Memos.