Bench Memos

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More on: Is Justice O’Connor Really Still a Judge?—Part 2


A few weeks ago, I tentatively argued that Justice O’Connor’s July 2005 letter to President Bush stating “my decision to retire from my position as an Associate Justice of the Supreme Court effective upon the nomination and confirmation of my successor” operated to effect her full “retire[ment] from the office” (under 28 U.S.C. § 371(a)) upon that confirmation, rather than her mere “retire[ment] from regular active service” and assumption of senior status (under 28 U.S.C. § 371(b)). As a result, I argued, O’Connor has not been a federal judge since Justice Alito’s confirmation in January 2006 and has not been constitutionally eligible to take part in the many federal appellate panels on which she has sat since that time.

In my judgment, my recent exchange with the Supreme Court’s public information office (which I have reproduced in full here and which I recopy in relevant part below) substantially reinforces my tentative view. In particular, that exchange, I believe, indicates that it is highly unlikely that O’Connor clarified or altered the terms of her retirement before it became effective.

I hasten to add that I am not maintaining that I can now prove with certainty that O’Connor fully retired from the federal bench. For starters, I cannot be certain that the public information office has provided me all relevant information that might cut against that conclusion (even though it clearly understood that it was in the interest of its client, O’Connor, that it do so). In addition, as I will make clear, I am drawing adverse inferences from the office’s non-responses or incomplete responses. While I believe that those inferences are reasonable, they might be mistaken. Further, my original post (in item 2) suggested two other possibilities for reading O’Connor’s retirement letter other than I have read it; my exchange with the public information office does not bear meaningfully on those possibilities.

Now let’s consider the relevant portions of my exchange with the public information office (presumably acting, as I explained in my Part 1 post, as O’Connor’s agent and under her direction):

1. In my initial inquiry, I asked the public information office whether O’Connor’s July 2005 letter to President Bush was “the instrument by which [she] effected [her] retirement” or whether there were “additional documents that … are (or may be) part of [her] act of retirement or that might bear on the meaning of the letter to the president.” I requested copies of any such documents as well as of any forms that O’Connor submitted to any personnel official in connection with her retirement decision.

2. In its initial response, the public information office stated:

In addition to the personal letters Justices traditionally send to the president announcing their plans to retire, a standard personnel action form is completed. This form (SF-50) serves as the official notification of personnel action for any federal government employee and is part of an individual’s personnel record. The SF-50 form for a Justice who is retiring also goes to the Administrative Office of the U.S. Courts Judges Compensation and Retirement Services Office. Justice O’Connor’s SF-50 form indicates she retired under 28 USC 371(b). The form itself, however, is confidential and cannot be released.

In a response to my follow-on inquiry, the public information office clarified that the “form the Court uses is actually an adaptation of the SF-50” and it provided me a blank copy of that adapted form—known as the SC250. In response to my request for further information about how the form for O’Connor was completed, the office stated:

The citation for the Title and Section of the Code under which the Justice retired, 28 U.S.C. 371(b), is listed on line 18 under “Authority.” The effective date, January 31, 2006, is listed on line 17. 

3. There are two basic reasons why the SC250 form for O’Connor cannot have effected her retirement or clarified or altered the terms of her retirement letter to President Bush:

a. It is all but certain that O’Connor herself did not execute the SC250 form. The SF-50 (“Notification of Personnel Action”) on which the Court’s SC250 (“Notification of Personnel Action”) is based is signed only by an “approving official.” The sole signature line on the SC250 is likewise apparently to be completed by a personnel official.

I asked the public information office specifically who signed the SC250 and have received no response. The obvious reason why that office would selectively disclose some information from the SC250 and not other information (much less disclose the entire form, redacted per my request to exclude personal information) is that O’Connor wanted to disclose only that information that she thought would help her case.

It’s worth noting that the public information office nowhere contends that O’Connor had any role in completing the SC250. Rather, it artfully refers in the passive voice to the form (“a standard personnel action is completed”) and speaks generally of the “form the Court uses” (rather than, say, the “form a justice completes”).

b. It is all but certain that the SC250 form was not executed until after Justice Alito was confirmed—in other words, after O’Connor’s retirement, pursuant to her letter to President Bush, had taken effect. How else, after all, could the SC250 form list the “effective date” of O’Connor’s retirement as January 31, 2006, the day of Alito’s confirmation? Again, I’ll note that the public information office has declined to answer my question about what date of execution accompanies the signature on the SC250. Hmmm, I wonder why.

4. Despite the breadth of my initial inquiry, the public information office’s first response did not assert the existence of any relevant documents besides the SC250 (originally misidentified as an SF-50). But at the end of its response to my follow-on inquiry, the office asserted:

Internal correspondence from the Justice to the Office of Budget and Personnel at the time of her retirement also confirms the Justice’s retirement effective January 31, 2006 under 28 U.S.C. 371(b)(1).

I asked the public information office to provide me a copy of any such correspondence or to identify the items of correspondence and their substance, but I have received no response. I’d be willing to bet that the office’s assertion rests on nothing more than, say, O’Connor’s hazy recollection and that any such correspondence, if it existed at all, didn’t plausibly amount to an effective act of retirement that superseded or modified or clarified O’Connor’s letter to President Bush.

In sum, if Justice O’Connor or the public information office had any information indicating that O’Connor clarified or altered the terms of the retirement decision set forth in her letter to President Bush before that decision became effective, they had both an opportunity and an incentive to provide that information to me. Instead, the information they did provide, together with the non-responses to my specific questions, reinforces my conclusion that O’Connor’s letter to President Bush was her operative act of retirement—and that it amounted, upon Alito’s confirmation, to a full “retire[ment] from the office” under 28 U.S.C. § 371(a).


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