A Stevens sign off would signal new era in Supreme Court politics
In the legal gossip world, (hell, even in the real world), a lot is currently being made of the fact that Supreme Court Justice John Paul Stevens has only hired one law clerk so far this term. In SCOTUS speak, this kind of dalliance in hiring help is often interpreted as an indication of probable retirement. Not that this was unexpected — Stevens is 89 years old, which makes him the second oldest justice in history.
A friend reminds me that for a long time, there was a tradition that, when possible, a Supreme Court Justice would retire when the current President was of the same party as the President who nominated you. That was the case even when your judicial philosophy might have “drifted” from where it once was.
One of the best examples of this is Justice Byron White, who was appointed by John F. Kennedy, but who, by the time he retired, was one of the more conservative justices. But, since White had been appointed by a Democrat, he waited until another Democrat was in office (in this case, Clinton) to announce his retirement. The same is true for Justice Sandra Day O’Connor, who was nominated under Ronald Reagan, drifted to moderate or liberal, but still retired under George W. Bush. And it could also possibly be said of Justice Felix Frankfurter, who was appointed under Franklin Roosevelt and probably would have liked to retire under Dwight Eisenhower, but waited until Kennedy was elected (he ultimately suffered a stroke in 1962 which forced his retirement, but had been in poor health prior to that).
Running with the speculation, if Stevens retires now, it will make two justices in a row who clearly held out longer than they wanted (David Souter famously hated Washington and Stevens has been very, very old for a very, very long time) so that the President in office would be closer to their ideology rather than the party of the president who nominated them.
It’s no secret that Supreme Court Justice is one the most politicized roles in Washington — but it has also always been one of the most traditional and bound by custom. It would appear that the most recent presidency has caused even the Court’s tradition to unravel in the furtherance of political ideologies.