Hat tip: How Appealing.
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The Missing Souter Clerks: Mark Sherman of the AP has a story about the apparent absence of law clerks hired by Justice Souter for next Term, and what this means for the likelihood that Justice Souter is retiring. We're all just speculating, of course. Those who say don't know, and those who know don't say. For a range of reasons, I tend to be in the camp guessing that this is a significant signal, and that Souter is likely to announce his retirement at the end of the Term. But then we'll know soon enough either way.
Hat tip: How Appealing.
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NBC News is reporting that Justice David Souter is, in fact, planning to retire, either at the end of this term or when his successor is confirmed.
UPDATE: More from the AP:
Justice David Souter has told the White House that he will retire from the Supreme Court at the end of the court's term in June, a source familiar with his plans said Thursday night.
SECOND UPDATE: From the NYT:
Two friends of Justice Souter, 69, said Thursday night that he had often spoken privately of his intentions to be the court's first retirement if Mr. Obama won the election last fall. He has told friends that he looked forward to returning to his native New Hampshire while he was still able to enjoy climbing mountains and other outdoor activities.
Why Souter's Replacement Matters Even if She has the Exact Same Views as Souter:
The MSNBC story on liberal Justice David Souter's likely retirement states that his departure "isn't likely to change the court's liberal-conservative composition, because his successor will almost certainly be moderate to liberal." The Washington Post similarly reports that "Souter's retirement is unlikely to alter the ideological balance on the closely divided court because Obama is certain to replace the liberal-leaning justice with someone with similar views." More generally, we often hear claims that the appointment of new justices whose interpretive philosophy is similar to those they replace is relatively unimportant because it won't affect the balance of the Court.
This conventional wisdom is wrong. It ignores the fact that the newly appointed justice will likely serve for many years to come, during which time the composition of the rest of the Court will change. Today, the average Supreme Court justice serves for over 26 years. Over such a lengthy tenure, there is likely to be turnover among the other justices, and the current appointee's ideology may have a major impact on the balance of power over the long run even if its immediate effect is insignificant.
For example, let's assume that Justice Souter's replacement always votes exactly as Souter himself would have. So long as the rest of the Court remains the same as today, nothing will change. However, if Obama is then able to replace even one of the five more conservative justices, the balance of power would become very different than it would have been had Souter been replaced by a more conservative justice than himself. What would have been a 5-4 conservative majority will become a 5-4 liberal one. Justice Antonin Scalia, for example, is 73 and could eventually be replaced by a liberal Obama appointee - especially if Obama wins reelection in 2012. Moreover, Souter's replacement will likely serve for decades to come. So Scalia's possible replacement by an Obama appointee is just one of many events that could happen during the tenure of Souter's successor that could make his or her ideology extremely important.
In theory, if Scalia is replaced by a liberal in 2012 and Souter himself remains on the Court, the ideological balance will be exactly the same as if Souter were replaced by a younger ideological clone of himself in 2009. However, the "younger" part is a key distinction between the two. Souter's replacement is likely to be much younger than he is, and will therefore probably be around a lot longer than Souter would have been had he chosen not to retire this year. Thus, he or (more likely) she will be affecting the Court's ideological balance for many years longer than Souter would have been able to do.
For these reasons, Souter's replacement will matter a great deal even if he or she has little immediate impact on the ideological balance on the Court.
How Souter's Replacement Could Change the Court:
The prevailing wisdom is that replacing Justice David Souter will not have a significant impact on the Supreme Court's balance. For most high-profile, ideologically charged issues, this is probably true (at least in the near term). Justice Souter is generally quite "liberal," and anyone President Obama nominates is likely to be quite liberal as well. That said, I think there are two ways in which Souter's replacement could have a significant effect on the Court's balance and doctrinal trajectory.
First, Justice Souter's replacement could alter the balance of the Court on a number of issues on which the Court is closely divided, but does not split along the traditional left-right fault line. Consider, for example, this term's decision in Arizona v. Gant. Justice Stevens' majority limiting the search-incident-to-arrest exception to the warrant requirement was joined by Justices Ginsburg, Souter, Scalia and Thomas. Justice Breyer was in dissent. Other criminal law cases, including the sentencing guideline cases, have produced similar lineups. So, if Justice Souter's replacement were to align with Justice Breyer, instead of Justices Stevens and Ginsburg, we could have a significant shift on the Court. Indeed, replacing Justice Souter with a justice who follows Justice Breyer's approach to criminal law issues could actually move the Court to the "right" (at least on these issues).
Replacing Justice Souter could also have a significant effect is on the Court's decisions on the due process limitations on punitive damages. Justice Souter joined the five justice majorities in BMW v. Gore and Philip Morris v. Williams limiting the award of punitives on due process grounds, and also wrote the Court's majority in Exxon Shipping v. Baker, which limited punitive damages under the federal common law of maritime. Again, "liberal" justices are split on this question. Here, however, if Souter's replacement were to align with Justices Stevens and Ginsburg, it is likely that the Court's recent punitive damages cases could be overturned.
A second way that Justice Souter's replacement could alter the balance on the Court would occur behind the scenes. Adding a new justice inevitably alters the internal dynamic on the Court, and some justices are better coalition builders than others. Insofar as Justice Souter's replacement is more (or less) able to forge consensus and draft opinions that command wide support, this could also have a significant effect on the Court. Even were President Obama to replace Justice Souter with someone who votes identically on every issue, the nomination could still have a significant impact (especially over time) if the new justice is more able to influence his or her colleagues.Many on the Left say they want President Obama to nominate a "liberal Scalia". I would say they should be careful what they wish for. Justice Scalia's opinions may be well-written and intellectually satisfying, but the same things that can make his opinions fun to read may prevent his opinions in many areas from commanding a majority of the Court. To take one example, documented by Professor Richard Lazarus shows in this paper, Justice Scalia's insistence on stronger bright-line rules for regulatory takings prevented him from creating a workable majority and produced "precedent heavy on strong rhetoric yet light on staying power." It's not an accident there's a book of his opinions called Scalia Dissents. So, perhaps paradoxically, a liberal nominee who demonstrates less ideological fervor, but is more strategic and conciliatory, might be more successful at moving the Court leftward.
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