Above the Law is reporting that Justice Souter hasn’t hired any clerks for OT09 and suggests that it may hint towards his retirement. I think this is an example of ATL jumping the gun and overrating their skill as investigative journalists.

The idea of late hiring isn’t totally unfounded though. Just last year, ATL posted Souter’s hirings March 11, 2008 and posted the final hirings for OT08 on April 17, 2008.

I honestly wouldn’t read too much into it. Souter always either hires his clerks late or his clerks don’t care enough to send David Lat an email about their swank new jobs. Even if he knew he was going to retire, he would hire clerks in the event that his successor doesn’t start on time or to help the new justice settle into the job. Either way, it would be a reckless maneuver on his part and his reverence for the institution would never allow it. Justices have traditionally hired for the next term even if they intended to retire in order to help incoming Justices get settled into their new job without having to worry about clerks and Justice Souter would keep up that practice. His reverence for the Court and its procedure is actually the reason I’m not totally convinced that he’ll retire at the end of the term. His famous claim that cameras in the Supreme Court would have to “roll over his dead body” comes to mind here.

In 2005, from my understanding, Justice O’Connor had hired clerks for the upcoming term even though she intended to submit her resignation at the end of the term. I couldn’t imagine Justice Souter doing things differently.

Update: Orin Kerr brings up the issue again at The Volokh Conspiracy here.


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