Souter announces retirement
on May 1, 2009 at 3:30 pm
Updated 6 p.m.
Justice David H. Souter notified President Obama Friday that he will retire “when the Supreme Court rises for the summer recess this year.” The President promptly thanked and praised him for his 19 years of service. The transcript of the President’s remarks can be found here. Souter’s letter can be downloaded here. The Court’s press release can be downloaded here. Statements from the eight other Justices can be downloaded here or read in this post.
The 69-year-old Justice, by setting his departure date at what is expected to be late June, appeared to be signaling that he would not await Senate approval of his successor. His letter indicated that he has met the requirements for retirement. He also said he would “continue to render substantial judicial service as an Associate Justice” — probably meaning he would accept temporary assignments to lower federal courts. He could not do temporary work on the Supreme Court after retiring. If he did serve on lower courts, he would be eligible for future pay raises.
He cited a federal law that allows a Justice to retire at age 69 if he or she had at least 11 years of service. A federal judge may retire at age 65 with at least 15 years of service; as the age goes up, the service requirement goes down. Federal judges have lifetime tenure, “during good behavior,” under the Constitution’s Article III.
His cryptic letter appeared to have been composed in some haste, implying that the Justice had not planned to make an announcement until later, perhaps after the current Term had concluded — a convention in past retirements. The letter was dated Monday and, in a fashion that bespeaks Souter’s own character, was terse, devoid of emotion and determinedly factual.
Court aides said there would be no further word about his decision, including any explanation for his choice — after an overnight of fevered Washington speculation about his plans — to make his decision known at this time. Souter is well known for his studied protection of his privacy, and for his firm habit of refusing to respond to attention directed his way.
In recent months, he has allowed himself a few public appearances, in what was clearly a break from years when he doggedly sought to avoid celebrity or even innocuous mention. He has indicated that one of his main reasons for continuing to oppose television or filmed coverage of the Court’s public proceedings was that that would give him and his colleagues vivid public personalities.
Other Justices, however, do not share his distaste for a life on the public hustings. Justices Ruth Bader Ginsburg and Antonin Scalia once appeared, in costume, in a Washington opera — a level of notoriety Souter presumably would never have indulged.
It may well be, though, that the intensity of the speculation since Thursday night, absorbing Washington in a sometimes frivolous guessing game, was more than even Souter was willing to go on tolerating without a response, however far out-of-character that might have otherwise been for him.
The Court is now in the final weeks of its current Term, finished with public hearings and devoting its time more or less exclusively to preparing the 31 decisions that still remain. If it follows its usual pattern, the Term will probably be over in the closing days of June, almost certainly by the end of the month.
Depending upon whether President Obama moves rapidly, a successor could be nominated by that time, but it seems highly unlikely that the Senate confirmation process could be completed by then even if there is no significant controversy over the choice. The Court can operate short-handed, especially during its summer recess. The next Term of the Court is to begin Monday, Oct. 5.
While some of the Justices actively prepare during the summer for the next Term, the only active business they have are some last-minute pleas for temporary action by state death-row inmates facing imminent execution, or some organization of individual faced with a prompt legal deadline that they want postponed while they pursue appeals. Each Justices is assigned at least one of the geographic federal Circuits for such emergency matters; Souter is assigned currently to the First and Third Circuits; another Justice will have to take those on during the summer months, it appears. UPDATE: A reader points out that federal law allows the Chief Justice to designate a retired Justice to handle at least some of the duties of a Circuit Justice, on temporary or emergency matters.
Souter is not obliged by law to remain on the Court beyond any point that he chooses to depart. It has been commonplace, however, for most retiring Justices to serve until a successor is ready to take office. One member of the modern Court — Chief Justice Earl Warren — served a year longer than he had wanted, because his nominated successor, Justice Abe Fortas, ultimately withdrew amid controversy. Souter may not have wanted to risk a prolongation of service in Washington — a community and an environment that he has long found unappealing.
