Will Justice Breyer Retire? Reading The Clerk Hiring Tea Leaves

Law clerk hiring can offer hints into a justice's retirement plans.

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[UPDATE (2:15 p.m.): Much of the analysis of this post remains unchanged, but my bottom line has been dramatically affected by law clerk hiring information I received shortly after publishing this post. I now believe that there’s a 70-30 chance that Justice Breyer will remain on the Court for at least one more Term, OT 2021. For more, please see this follow-up post, Confession Of Error: Justice Breyer Is Hired Up For October Term 2021.]

When will Justice Stephen Breyer retire from the U.S. Supreme Court? It’s a question on the minds of many Americans who understand the power and importance of the Court in resolving some of the most critical issues faced by the country.

At the current time, there’s a 6-3 conservative majority on SCOTUS. If Justice Breyer, 82, were to retire sometime soon, President Joe Biden could replace him with another liberal justice, whom the current Democratic Senate could confirm, God (of the Senate) Joe Manchin willing. But if Justice Breyer decides to stick it out at the Court, and then the Democrats lose the White House, the Senate, or both, he could end up leaving the Court at a time not of his choosing — e.g., because of death or disability — and might then be replaced by a conservative justice, giving conservatives an overwhelming 7-2 majority. Fearing this prospect, many commentators on the left have urged Justice Breyer to retire as soon as possible.

What do we know right now about Justice Breyer’s retirement plans? Bupkis. When Dahlia Lithwick of Slate asked him about his retirement plans in December, he responded, “Well, I can’t answer this question because it is too close to something that is politically controversial. I mean, eventually I’ll retire, sure I will. And it’s hard to know exactly when.”

Thank you, Justice Breyer. That was about as articulate and illuminating as one of your hypothetical questions at oral argument.

They say that actions speak louder than words, so let’s look at Justice Breyer’s actions: specifically, his hiring of law clerks, the brilliant young lawyers who assist him with his judicial duties and change over with each new Term of the Court. In the past, some Supreme Court justices have telegraphed their retirement plans through their law clerk hiring practices (intentionally or not).

A brief bit of background. As an active justice, Justice Breyer is entitled to four law clerks to assist him with his work at the Court. As a retired justice, on the other hand, he would be entitled to only one law clerk. So whether he has hired zero clerks, four clerks, or some number in between could be an early indicator of his retirement thinking.[1]

Timing matters as well. The Supreme Court’s Term starts on the first Monday of October, which is why, for example, the current judicial year (2020-2021) is referred to as October Term 2020. Most justices who are planning on sticking around — including Justice Breyer, in years past — hire clerks a year or more in advance of the start of each new Term in October. Since we are now in April 2021, we would expect Justice Breyer, based on the general practice of the justices and his own past practice, to have already hired four clerks for October Term 2021.

(Some justices hire law clerks even farther in advance. For example, Justice Kavanaugh has already hired law clerks for October Term 2023.)

How does law clerk hiring change when justices are planning on retiring? Let’s look at the four most recent justices to retire from the Court — Justices Sandra Day O’Connor, David H. Souter, John Paul Stevens, and Anthony M. Kennedy — and how they handled clerk hiring prior to announcing their retirements.

Justice O’Connor announced her retirement on July 1, 2005. As of April 2005, she had hired just three clerks for October Term 2005. In June 2005, Professor Orin Kerr pointed out her “apparent failure to hire a fourth law clerk for the new Term” and speculated that maybe she was thinking of retiring — which turned out to be correct. So in Justice O’Connor’s case, her law clerk hiring did offer a window into her plans.

Justice Souter announced his retirement on May 1, 2009 (although Nina Totenberg of NPR broke the news on the evening of April 30). As of April 2009, he had hired no law clerks for October Term 2009. Although Justice Souter tended to be the last justice to hire clerks during his time on the Court, generally hiring less than a year in advance, he was usually done by April for the October Term. So his having hired zero clerks by April was a sign — an accurate one — that he was eyeing the exit.

Justice Stevens announced his retirement on April 9, 2010. As of September 2009, he had hired just one clerk for October Term 2010 — and the Court even confirmed to the media his hiring of a single clerk for that next Term. Adam Liptak of the New York Times reported:

The alternative [to hiring just one clerk] is to hire [multiple] clerks now for a job that might evaporate later, something Justice Stevens would not do lightly, people who know him said.

“Justice Stevens is a man who cares deeply about treating people with respect,” said Christopher L. Eisgruber, the provost of Princeton University, the author of The Next Justice: Repairing the Supreme Court Appointment Process and a former clerk to Justice Stevens.

There is at least some reason, Professor Eisgruber said, to think the justice intends to retire relatively soon.

So Justice Stevens hired just one clerk, the single clerk he was entitled to as a retired justice, before retiring. Once again, law clerk hiring gave accurate insight into his retirement plans.

This brings us to Justice Kennedy, who announced his retirement on June 27, 2018. At the time of his announcement, he had hired four law clerks for October Term 2019 — clerks he actually had in place by December 2017, if not earlier. So of the past four justices to leave the Court through retirement, he was the only one to have hired a full clerk class before peacing out — and there are reasons to believe he was anomalous.[2]

So what does this history tell us? Of the last four justices to retire, three engaged in abnormal law clerk hiring activity prior to stepping down. This suggests that law clerk hiring, while not infallible, is often a decent indicator of a justice’s retirement plans.

This brings us to Justice Breyer. It’s now April 9, 2021, and as far as I know — please email me, ASAP, if I’m wrong — he has hired only two law clerks for future Terms:

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

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

Some on Twitter viewed his having hired more than one clerk for the future, as opposed to the one clerk he’d get as a retired justice, as evidence that he plans on sticking around. For example, Linda Hirshman, author of the bestseller Sisters in Law: How Sandra Day O'Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World, took Justice Breyer’s hiring of two clerks as a sign that he’s planning on staying beyond this Term. She wondered if he was being narcissistic in wanting to stay on the Court as long as possible, instead of stepping down at an opportune time — an accusation some leveled at Justice Ruth Bader Ginsburg, who ignored calls for her to retire during the Obama Administration and was then replaced by a staunch conservative, Justice Amy Coney Barrett. But I respectfully disagreed, suggesting another possible path for Justice Breyer:

Two clerks isn’t that many clerks — especially for Justice Breyer, who historically has hired full classes of four clerks, fairly far in advance. Look at his past practice:

  • By October 2018, he had hired four clerks for October Term 2019 (a year ahead of time).

  • By March 2017, he had hired four clerks for October Term 2017 and four clerks for October Term 2018 (more than a year and a half ahead of time).

  • By January 2017, he had hired four clerks for October Term 2017 and two clerks for October Term 2018 (some 22 months ahead of time).

So for us to be in April 2021 and for Justice Breyer to have only two future clerks on the books is highly unusual.

Now, here’s a significant caveat: it’s quite possible that Justice Breyer has hired more than two clerks, and the hires just haven’t been brought to my attention. Nobody is required to report clerk hires to me, so sometimes I don’t find about them until fairly late in the game. For example, for the current Term, October Term 2020, I didn’t learn about Justice Breyer’s clerk hires until July 2020.

Here’s one difference, though. This time around, for obvious reasons, I have been trying to find out about Breyer hires more aggressively than usual. I have asked for help from my many Twitter followers, who are usually very good about responding to such requests — and I got nothing. I have reached out to some of my best sources on SCOTUS clerk hiring (you can guess who some of them might be) — and I got nothing.

(Again, if I’m wrong about this and you know of additional Breyer hires that I don’t already have, please email me at davidlat@substack.com, ASAP. Thanks in advance.)

Assuming it’s true that Justice Breyer has hired only two clerks for future Terms, here’s my bottom line: based on his law clerk hiring (or lack thereof), I think there’s an 80-20 chance that Justice Breyer will retire sometime soon, most likely when the current Term ends in late June or early July. If he does retire, he’ll keep one of his two hires as his clerk for October Term 2021, and he’ll defer the other to October Term 2022.

But here’s another caveat: Supreme Court clerkships are, as jobs go, pretty pretty pretty good. Brilliant young (or not so young) lawyers would leap at the opportunity to clerk for SCOTUS, quitting whatever job they currently hold and showing up at One First Street the next day if necessary. If Justice Breyer decides he wants to hire two more clerks on very short notice, he can do so practically instantaneously.

Some of you might have noticed that Justice Breyer gave a recent speech at Harvard Law School about the future of the high court. Do his remarks shed any additional light on his plans?

Specifically, on Tuesday, Justice Breyer returned to his alma mater to deliver the annual Scalia Lecture. In his nearly two-hour talk, entitled “The Authority of the Court and the Peril of Politics,” Justice Breyer sounded skeptical notes about so-called “court packing,” urging folks inclined to support structural changes to the Court to “think long and hard before embodying those changes in law.” He repeatedly emphasized the difference between law and politics and noted that the conservative majority at the Court frequently ruled against former President Donald Trump and refused to get involved with the 2020 election.

One might think that if Justice Breyer truly holds this view of the Court as separate and apart from politics, then he wouldn’t retire just because we have a Democratic president and Senate. As long as he’s healthy and still able to do the job — and by all accounts, plus his smooth delivery of a two-hour talk, he is — then he should stick around.

But I have a different theory. I believe Justice Breyer sounded these notes in his HLS talk because of the problem identified last month by Harvard law professor Noah Feldman: all of these calls for his retirement from the left have put Justice Breyer in a tough spot, making him look like a partisan should he step down anytime soon. So Justice Breyer made a highly deliberate decision to give a big speech at Harvard Law arguing that “it is wrong to think of the Court as another political institution” — to pave the way for his stepping down from the Court in a few months without being accused of being political. (Also, the tone of his talk sounded valedictory; as Mark Sherman of the Associated Press reported, Justice Breyer’s talk “could be read as a kind of farewell address, filled with calls for the public to view the justices as more than ‘junior league politicians.’”)

Here is one final pro-retirement factor. One of the leading contenders to replace Justice Breyer on the Court is his former law clerk, Judge Ketanji Brown Jackson (D.D.C., nomination to the D.C. Circuit pending). Most of the time, justices and their ex-clerks have strong bonds, and by all accounts, Justice Breyer and Judge Jackson have a wonderful relationship. At her 2013 investiture as a district court judge, Justice Breyer delivered the oath and praised her for her intellect, work ethic, and ability to “see[] things from different points of view.” I suspect that Justice Breyer would love to see Judge Jackson, his former clerk, become Justice Jackson (the second Justice Jackson, for those of you keeping track at home).

But Judge Jackson is currently 50, turning 51 in September — and her leading rival for the next SCOTUS nomination, Justice Leondra Kruger of the California Supreme Court, is a spry 44. If Justice Breyer would like to see Judge Jackson replace him on the Court, then he needs to act soon.

Please note that I’m not suggesting any kind of quid pro quo or other unseemly activity here, e.g., President Biden or someone in his administration promising to nominate Judge Jackson if Justice Breyer agrees to retire. In fact, I have no reason to think that the White House has said anything about retirement to Justice Breyer, and I suspect that it has not. What I do know is that justices care deeply about their legacies, and the success of their law clerks is part of a justice’s legacy (analogous to a “coaching tree,” as my former colleague Elie Mystal explained). Justice Breyer surely knows that Judge Jackson is a top contender to replace him, at least if he retires in the near future — so that might, at the margins, weigh in favor of stepping down around now.

[UPDATE (4/10/21, 11:30 a.m.): On Friday afternoon, 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.]

Will Justice Breyer retire in 2021? Stay tuned. Please subscribe to Original Jurisdiction, and I’ll send you email updates, in real time, regarding every little twist and turn in the Breyer Retirement Saga. Thanks!

[UPDATE (2:15 p.m.): Shortly after this post was published, I learned that Justice Breyer has actually hired four law clerks for 2021-2022 — including one clerk hired just within the past few weeks. So I now believe that there’s a 70-30 chance that Justice Breyer will remain on the Court for at least one more Term, OT 2021. For more, please see this new post, Confession Of Error: Justice Breyer Is Hired Up For October Term 2021.]

FOOTNOTES:

[1] What do law clerks to retired justices do? They work with their retired bosses on various projects — e.g., assisting justices who sit with lower courts (as Justices O’Connor and Souter did in retirement), helping out with speeches or articles — and they also get farmed out to the chambers of an active justice to work on cases alongside that justice’s clerks.

[2] What explains Justice Kennedy’s hiring four clerks prior to retiring? Two things. First, as subsequent reporting later revealed, he was genuinely on the fence about retiring, for months leading up to his final decision. Retirement was on his mind; in fact, he warned the folks he gave clerkship offers to that he might be retiring. But he didn’t completely make up his mind until fairly late in the game, and hiring a full set of clerks allowed him to keep his options open.

Second, Justice Kennedy was one of the most media-conscious of the justices. He cared quite a bit about his press coverage, he was conscious of how he was being watched by the press, he vigorously pushed back on retirement rumors back in 2016 — and I don’t think he liked the idea of tipping his hand on something as important as his retirement through something as mundane as law clerk hiring. So he decided to fake us all out by hiring four clerks. (And those four clerks all wound up fine, in case you’re wondering; consistent with the Court’s tradition surrounding “orphaned” law clerks, places were found for them in the chambers of other justices.)


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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