UPDATE in Washington, 4 p.m.: The statements about Justice Stevens’ retirement from each of the seven other members of the Court and former Justices Souter and O’Connor are now here.
Dictated from the Chicago Midway Airport Terminal 2:05 p.m.:
Closing one era and opening another, Justice John Paul Stevens notified President Obama on Friday that he will retire from the Court when the current Term ends, probably late in June. Stevens made his decision public eleven days before he reached his ninetieth birthday, and about two years short of a date on which he would have become the longest serving justice in history. Justice Stevens’ letter to the president is here.
Stevens chose to make his retirement effective at the end of the Term, rather than waiting until a successor has been named by the president and approved by the Senate. That choice puts much heavier pressure on both the president and the Democratic leaders of the Senate, because they will not have time to stretch out the process and have a new justice in place when the Court returns for its next term on October 4.
With Friday’s development, the Court was poised for a generational shift, ending its last remaining link to the days of liberal dominance of the tribunal, and, at the same time, removing from the bench the most committed liberal remaining among the nine.
Stevens, who began his career as a mostly unpredictable centrist on a liberal Court, migrated to the Court’s left over the years as new justices moved the Court noticeably to the right. Stevens has been on the Court since 1975, arriving to serve with such liberal giants as Justices William J. Brennan and Thurgood Marshall.
It has been rumored for weeks that this would be Stevens’ last Term as a justice, but he had largely kept his own counsel until recently, when he began discussing publicly the possibility that he would soon retire. He had made it clear in recent interviews with news reporters that he intended to leave the Court while President Obama was in the White House, and that gave him the option of continuing to serve for two-plus more years.
It is almost universally expected that Republicans in the Senate, although a minority, will attempt a sustained effort to prevent Senate approval of any nominee that President Obama sends up for confirmation. Sensing that they have a chance of increasing their numbers in the Senate, the GOP minority there may even make an effort to delay the coming confirmation process until after a new election is held on November 2.
Among the potential nominees to the Stevens seat are U.S. Solicitor General Elena Kagan; a federal circuit court judge from Chicago, Diane P. Wood; and a federal circuit court judge in Washington, D.C., Merrick B. Garland. Presumably, the president has not yet committed himself to any particular nominee, although the White House for weeks and perhaps longer has been preparing to move toward the selection of a successor, in anticipation of Stevens’ commonly expected retirement this Term.
UPDATE 5;27 p.m., from the Court’s press room in Washington:
Stevens’ retirement letter was hand-delivered to the White House by a Supreme Court aide at 10:30 a.m. Friday, and White House Counsel Bob Bauer then notified the President, who was traveling, by telephone. The Court promptly released the letter, and then statements from Justices who are serving or had served with Stevens. Later Friday, the President made these remarks about Justice Stevens as part of a speech in the White House Rose Garden, praising the Justice and vowing to “move quickly to name a nominee” for that seat.
In Stevens’ letter, he pointed to a federal law that governs the retirement of a federal judge from active service. If a Justice (or a judge on a lower court) steps aside from an active role, meaning giving up a full membership on a federal court, that retiree (or “senior” judge if leaving a lower court) can continue to be eligible for any future pay raises if he or she agrees to continue serving, occasionally, as a lower court judge. Retired Justices O’Connor and Souter are continuing, from time to time, to sit on lower courts under that provision. (A retired Justice, however, cannot return even to part-time service on the Supreme Court, but can take a seat on a lower appeals or trial court, on a case-by-case basis.)
In opting to leave the Court when the current Term ends, Stevens took the same step that Souter had taken last year; O’Connor, however, continued serving until her successor, Justice Samuel A. Alito, Jr., joined the Court to take her place. Thus, when the Court finishes this Term and “rises” (as it puts it) for the summer, Stevens’ service will end, and his seat will remain vacant until a successor has been nominated by the President and confirmed by the Senate.
The Court can function with fewer than its full membership of nine, but does not like to do so. With only eight, there is a significant chance, in closely contested cases, of splitting 4-4; in that situation. the lower court ruling that has been reviewed is simply upheld, without an opinion and without setting any precedent — a significant waste of the Court’s time.
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