Bench Memos

Has Justice Souter Actually Retired?

On May 1, Justice Souter sent a letter to President Obama in which he stated, “When the Supreme Court rises for the summer recess this year, I intend to retire from regular active service as a Justice ….”  (Emphasis added.)  Many folks appear to regard this letter as embodying Souter’s act of retirement, but that’s far from clear to me.  It seems instead merely to set forth his then-existing intention to retire at a later point. 

Compare the retirement letter that Justice O’Connor sent to President Bush, dated July 1, 2005:  “This is to inform you of my decision to retire from my position as an Associate Justice of the Supreme Court of the United States effective upon the nomination and confirmation of my successor.”  It seems to me that it would be good form for Souter to send a similar letter to President Obama (stating his decision to retire either immediately or upon the confirmation of his successor).  So far as I’m aware, he hasn’t done so.

A few additional points:

1.  It’s an interesting question just what a judge needs to do in order to retire.  As I understand it, the usual practice is to send a letter to the president stating the decision to retire.  But other alternatives—e.g., a letter to the Chief Justice or to the chief administrator of the judge’s court—might well be adequate.

2.  There’s also an interesting question whether a judge may retract a decision to retire at some future date (or conditional on some future event).  My recollection from my OLC days is that there is at least one instance of a judge doing so.  As I recall, the judge informed the president of his decision to retire on a date certain because of poor health, but he sought to retract that decision when his health improved in the intervening period.  I believe that OLC opined that the retraction was permissible.

3.  None of this has any practical bearing (at least, not yet) on the Sotomayor nomination.  If he hasn’t done so already, Souter needs to retire before President Obama can appoint Sotomayor to the Court—or, arguably, at the same instant in which he appoints her—but he doesn’t have to do so before nomination and Senate confirmation occur.  (The reason for my offset phrase in the preceding sentence:  In some instances, justices or judges have confusingly retired upon the appointment of their successors.  That creates the metaphysical dilemma of how an appointment can occur to a seat that becomes vacant only once the appointment occurs.  As I recall, OLC has deemed retirement and appointment to be simultaneous in such instances and thus viewed the sloppy practice as effective.)