Confession Of Error: Justice Breyer Is Hired Up For October Term 2021

Justice Breyer hired a fourth clerk for the next Term within the past month, strongly suggesting that he’s not going anywhere.

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Hello readers, and apologies for sending you a second post within just a few hours of the last one (which I try to avoid doing, to spare your inboxes). In this case, however, I feel that it’s necessary — for reasons that should soon become clear.

This morning, I published a post arguing that based on his apparently having hired just two law clerks for the next Term of the U.S. Supreme Court, Justice Stephen Breyer was likely to retire from SCOTUS at the end of this Term. I pegged the chances of this at 80-20. But I offered the caveat that I wasn’t certain I had all of his clerk hires.

Sure enough, shortly after I published my story, I received new information about recent hiring activity by Justice Breyer. Specifically, within the past month, Justice Breyer made his fourth and final hire for the next Term, October Term 2021:

  • Erika Hoglund (Stanford 2019/Thomas (9th Cir.)/Chhabria (N.D. Cal.))

Erika joins Justice Breyer’s two prior hires:

  • Elizabeth Deutsch (Yale 2016/Pillard/Oetken (S.D.N.Y.))

  • Joel Wacks (U. Chicago 2018/McKeown/C. Breyer (N.D. Cal.))

Upon information and belief, the “missing” Breyer hire is a woman who graduated from Yale Law School. If you have her information, please email me: davidlat@substack.com.

This significantly changes my analysis, especially since Erika Hoglund was hired within the past few weeks. As I just tweeted, I now think there’s a 70-30 chance that Justice Breyer remains on the Supreme Court for at least one more Term, October Term 2021.

Remember Justice Breyer’s recent Harvard Law School speech, discussed in my earlier story, in which he argued that the Court is not as political and politicized an institution as many people think? It now looks like a preemptive defense of his decision to stay on the Court, directed at individuals and groups like, say, Demand Justice:

Of course, this is all just conjecture on my part, and I must offer the standard disclaimers. As I mentioned in my prior post, Justice Kennedy hired a full complement of clerks and then retired anyway, so Justice Breyer might very well do the same. (For the reasons I previously gave in the footnotes, though, I do think Justice Kennedy was especially likely to try and cover his tracks; if Justice Breyer has hired four clerks for OT 2021, I think it’s most likely because he expects to be on the Court at that time.)

At the end of the day, I rely on you, my wonderful readers, for important information and updates about topics like SCOTUS clerk hiring. If you know about hires (whether by Justice Breyer or others) that don’t appear in my prior roundup and weren’t already tweeted from @SCOTUSambitions, please email me: davidlat@substack.com. Thanks!

UPDATE (4/10/21, 11:30 a.m.): Two additional points. First, on Friday, the White House made clear that President Joe Biden will not pressure Justice Breyer to retire. According to White House press secretary Jen Psaki, “He believes that’s a decision Justice Breyer will make when he decides it’s time to no longer serve on the Supreme Court.” She added that she’s not aware of President Biden having any conversations with justices since his inauguration earlier this year.

Second, on Justice Breyer helping the SCOTUS candidacy of his former law clerk, Judge Ketanji Brown Jackson, which I mentioned earlier, here’s a point raised on Twitter with which I agree (which also supports the idea of Justice Breyer staying on for one more Term): “if he believes Ketanji Brown Jackson will be his successor, he probably wants her to spend a year on the D.C. Circuit, before he steps down.” The case for Judge Jackson’s confirmation to SCOTUS will be stronger after she’s spent even a little time on the D.C. Circuit (as Chief Justice Roberts and Justice Thomas did before being elevated).

UPDATE (5/21/21, 5:48 p.m.): Here’s my read on what happened. Justice Breyer hired his first two clerks for October Term 2021, Liz Deutsch and Joel Wacks, quite some time ago — Deutsch sometime before January 20, 2020, and Wacks sometime before October 9, 2020 (the dates I tweeted out their hirings; I don’t know when exactly they were hired, just that it was prior to these dates). Then he paused his hiring for a few months, mulling over retirement. Finally, after deciding to stay for OT 2021, he hired his last two clerks in short order, sometime around March 2021.


Thanks for reading Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, you can reach me by email at davidlat@substack.com, and you can share this post or subscribe to Original Jurisdiction using the buttons below.

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