Due to its cultural insularity and secrecy, legal commentators often have to act like old Sovietologists who would predict shifts in power by who in the Politburo was standing where on top of Lenin’s tomb. For Supremologists, there are other common indicators: the most prominent is the reduction of judicial clerks. Speculation over Stevens’ retirement is now at its peak with news that he has selected only one clerk for next year. I will be discussing this story on tonight’s Rachel Maddow.
A retirement for Stevens next year would certainly make sense. He will be 90. To secure the record as the oldest justice to serve on the Court, he would have to serve under Feb. 24, 2010 to beat Oliver Wendell Holmes’ record. To set the record as the longest serving justice, he would have to serve until 2012.
More importantly, the vacancy would occur at the ideal time if he wanted to ensure a liberal to replace him. As you get close to the end of the first term (particularly with Obama’s popularity plummeting in polls), it becomes more difficult to get through a nominee and even harder to get through a liberal. Many liberals are disappointing in the appointment of Sotomayor who was on the short list for George Bush and often voted against liberal positions on the Second Circuit. If she votes the way she did as a Second Circuit judge, liberals will lose ground on the Court. Stevens is a liberal icon and liberals are likely to demand a true liberal as a replacement.
Despite his age, Stevens has remained remarkably sharp. Indeed, I am often asked why my proposed reform of the Supreme Court does not include an age limitation or mandatory retirement. I also answered in three words: John Paul Stevens. The last ten years of Stevens’ opinions in my view have been his best. He improved with time and anyone who meets him is surprised how undiminished his intellect and acumen are with age. Unlike William Douglas and Thurgood Marshall who were greatly diminished by age and raised disturbing questions of competence at the end of their service, Stevens remains an eloquent and active member of the Court.
I have never hidden my love for Stevens. I most value his understated demeanor and self-effacing character. Indeed, while other colleagues relish in celebrity status, Stevens has largely followed a traditional view of a justice in making relatively few speeches and staying out of the public eye. Indeed, I once flew to Milwaukee on the same plane with Stevens and his wife. We were both speaking to the judges of the Seventh Circuit. While I stood speaking with Stevens, a lawyer ran up saying “I am your biggest fan.” He then shook my hand. I proceeded to introduce Justice Stevens to the lawyer who turned beet red and made a fast retreat. On the plane, one passenger actually hit Stevens with her carry-on luggage — never realizing this was a justice who has had a transformative impact on our society. That is how Stevens and his wife clearly prefer it.
While other justices have selected a full panoply of clerks only to tell them later of their retirement. That would not be in Stevens’ character. He is a remarkably kind man who would likely view such a surprise as unfair to these clerks. None of this means that this is a certain thing. Even if he is thinking of resigning, he can always change his mind and pick up a couple more clerks. However, in predictive environments, this is one of the strongest.