The news that Justice Stevens has selected only one law clerk for the Supreme Court Term that begins in October 2010 has understandably fueled speculation about the possibility that he will retire at the end of the Term that is about to begin now. Herewith, a few thoughts:
0) By way of background, each active Justice is entitled to 4 law clerks. For many years, Justice Stevens only hired 3, although in recent years he has taken the full 4. (The late CJ Rehnquist also only hired 3, perhaps because that meant he and his clerks could play doubles tennis without leaving anybody out. Really.) Each retired Justice is entitled to one law clerk, and the law clerk for a retired Justice usually "affiliates" with an active Justice because there usually isn't enough work for a retired Justice to fully occupy that law clerk.
1) There really is no explanation for hiring one rather than his usual full complement of 4 law clerks OTHER than that Justice Stevens at least wants to give himself the option of retiring at the end of the Term. If he decides to stay on, he will have no shortage of able and willing applicants to fill out his roster. If he decides to call it quits, he won't be disappointing the 3 young lawyers thereby left without jobs.
2) Let's suppose that Justice Stevens has decided that, barring unforeseen circumstances (such as a sudden decision by another Justice to retire at the end of the 2009-10 Term), he will retire at the end of the 2009-10 Term. If so, was hiring just one law clerk the right move? On the surface, the answer appears to be yes: It is, as noted above, a mercy to the law clerks who would otherwise have expected to be clerking for Justice Stevens.
3) Or is it? Suppose an ambitious young lawyer were given the following choice: a) Accept the offer of a Supreme Court clerkship with Justice Stevens beginning in mid-2010, understanding that he will turn 90 in April, and therefore that he might leave the Court before you get to start your clerkship; or b) Not be offered a clerkship with Stevens. It's true that option a) risks setting our young lawyer up for a disappointment and disrupting her plans, but it also carries real benefits: In the past, "orphaned" clerks of this sort have often landed jobs with other Justices, including the Justice confirmed to take the departing Justice's seat. Moreover, even if not picked up in this way, the fact that our young lawyer was selected for a Supreme Court clerkship (if she can find some way to list it on her c.v.) could be a valuable credential down the road.
4) That's not to say that the choice is obvious. Taking a clerkship with Justice Stevens creates opportunity costs. Had Justice Stevens followed his usual pattern of hiring a full complement of clerks for 2010-11 in late June or early July, then the clerks accepting those jobs would have foregone other opportunities that could dry up before he announces his retirement (should he do so) next spring. Such opportunities include the possibility of a clerkship with another Justice who has not yet filled his or her roster for 2010-11 (Sotomayor, say). So if Justice Stevens was already strongly leaning towards retiring at the end of the 2009-10 Term, he might well have made the judgment that it would be unfair to offer 3 clerkships that would likely never pan out.
5) But why should Justice Stevens have made the judgment for the prospective clerks? Could he not have simply told 3 of the offerees that he was planning to retire before their clerkships started, but that he might change his mind, and then let them decide whether to take the clerkship with that risk? I think the answer is no. Such a course would have posed too great a danger of a leak and might put the prospective clerk in a very awkward position. By contrast, NOT disclosing to the offerees the likelihood of the job drying up would be dishonest.
6) All of the above leads me to conclude that it is likely that Justice Stevens thinks he will probably retire at the end of the 2009-10 Term. Why not just say so officially now? At a minimum, because doing so would yield 10 months of speculation and backstabbing over the President's next pick. Indeed, even the knowledge that Justice Stevens is likely to retire may have already sparked such activities.
Posted by Mike Dorf