It's Official:
Justice Sandra Day O'Connor has announced that she is retiring. A few more or less serious thoughts, which I plan to add to throughout the morning:
1. Oddly, Justice O'Connor's letter does not mention the all-important question: what is to happen to Sasha Volokh? Will he get picked up by another Justice? Will he come back to the Volokh Conspiracy? So far the Associated Press hasn't covered this angle yet.
2. The mystery of the missing 4th SOC clerk is now explained; it was O'Connor herself who was retiring.
3. The big question now is whether the Chief will announce soon as well. I'm not sure whether SOC's retirement makes the Chief's more or less likely — any thoughts?
4. Interesting that after years of SOC retirement rumors, she retires after a Term in which most people were looking to another Justice to retire.
5. When courts apply the "reasonable observer" test in Establishment Clause cases, will they now call up Justice O'Connor in Arizona to ask her what she thinks?
6. My guess is that we'll have to wait to find out who the Administration will nominate to replace Justice O'Connor. I assume that the Administration's next move depends on whether SOC is the only Justice to retire.
7. Supreme Court advocacy in the last decade has focused a great deal on trying to understand the mind of SOC, as she was the swing vote in many big cases. That learning has just become obsolete.
8. Even if Justice O'Connor is gone, we may still hear her name in 1 First Street when lawyers accidentally call Justice Ginsburg "Justice O'Connor."
9. O'Connor's retirement may shift the Court a lot less than people think. In the big ideological cases of the last Term, Justice Kennedy was the swing vote as often as (or maybe even more often than) Justice O'Connor. Let's assume for now that O'Connor is replaced by a consistently more conservative Justice; even if that's true, the left-of-center Justices presumably still have 4 very reliable votes and a good shot at picking up a 5th vote with Kennedy. Plus, new Justices are hard to predict, and it's often hard to tell whether a new Justice will vote consistently one way or another.
10. We're likely to hear a lot about the future of
Roe v. Wade in coming weeks and months. The common wisdom, assuming no shifts in votes from past cases, is that the 8 remaining Justices include 5 votes for Roe (RBG, SGB, DHS, JPS, AMK) and 3 against (AS, CT, WHR). On the constitutionality of partial-birth abortion bans, the common wisdom is that the 8 remaining Justices split 4 to 4, with Justice Kennedy switching as seen by his vote in
Stenberg v. Carhart.
11. My understanding from press reports is that O'Connor is staying on the Court until her replacement is confirmed. Bush gave some comments from the White House a few minutes ago, and my recollection is that he said he planned to nominate a replacement such that the replacement would be confirmed by the time of the new Term in the fall. Of course, that assumes a timely confirmation process, which may or may not happen.
12. O'Connor's retirement is a gift to all the commentators who were trying to come up with profound thoughts about the just-completed Supreme Court Term. The Term was actually pretty boring in the end; while there were some interesting cases that offered the Court the opportunity to venture out in some new directions, the Court mostly ended up reaffirming the status quo. Now talking heads can ruminate about Justice O'Connor and her retirement rather than the cases the Court decided.
13. According to Dana Bash, reporting at CNN, the White House found out about the possible retirement yesterday afternoon, when the Supreme Court Marshal's Office informed the White House Counsel that one of the Justices would be sending a letter to the White House today. The White House didn't know O'Connor was the Justice making the announcement until this morning.