Bench Memos

Re: Is Justice O’Connor Really Still a Judge?

Just a quick update on my post three weeks ago spelling out my tentative view that Justice O’Connor has been unlawfully participating in decisions of various federal courts of appeals since her retirement:

My post elicited a number of interesting comments and questions. One recurring observation by commenters was that O’Connor’s letter to President Bush stating her decision to retire may merely have been informational—rather than the operative act by which she effected her retirement—and that she may have performed the operative act of retirement in some other way, such as by some form that she submitted to a personnel office. (I did note in my original post the possibility that O’Connor might have taken actions subsequent to her letter that sought to clarify or alter the terms of her retirement, but the commenters’ observation, though somewhat similar to that possibility, is conceptually distinct.)

I was hoping by now to be able to respond to that observation and also to reinforce or disavow the tentative position that I set forth in my post. But for the past two weeks I have been engaged in a back-and-forth with the Supreme Court’s public information office that has been helpful to my understanding of the matter, and I’m still hopeful that the pending third round of the exchange will produce some additional information. So perhaps I’ll have more on this next week.

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