SCOTUS for law students: Retired Justices

When is retirement not really retirement? Just ask Justices David Souter, Sandra Day O’Connor, and John Paul Stevens.

The three Justices may have retired from the Supreme Court but not from public life. All three remain actively involved and visible in various ways, although they have left behind the steady review of Supreme Court petitions, the weekly conferences among the Justices, and the grind of work in Washington, D.C.

The three remain active in different ways. Souter sits regularly on the U.S. Court of Appeals for the First Circuit in Boston. Stevens is a frequent speaker at legal and judicial conferences. O’Connor is actively involved in promoting civic literacy among young people.

Since the death of Justice Antonin Scalia on February 13, as the Court operates with only eight Justices, there has been more interest in the whereabouts and activities of the three retirees. Before March 16, when President Barack Obama nominated Judge Merrick Garland to fill the vacancy, there were even calls in a few quarters for O’Connor to return to hold the seat until the next president fills the vacancy with a long-term appointment. However, the Republican senators refusing to act on Garland’s nomination were no more likely to move O’Connor’s nomination.

What are the three retired Justices doing with their free time?

The first among the three to retire was O’Connor, who gave up her seat in January 2006 and was replaced by Justice Samuel Alito. O’Connor retired ostensibly to care for her husband, John, who suffered from Alzheimer’s and died in November 2009. By the fall of 2006, O’Connor was sitting periodically on federal appeals courts and continued to hear appellate cases for quite a few years. A search of electronic databases shows that O’Connor sat on some 180 appeals court cases through June 2014, when she appears to have stopped hearing appeals. Her travels appear to have taken her to every court of appeals except those in Washington, D.C. During this period, she wrote thirty-three decisions, and the Court declined to review the six that were subsequently appealed to the Supreme Court.

Sitting on the courts of appeals, a retired Justice presumably has a certain amount of prerogative to eschew writing decisions she would prefer to avoid. But among the more interesting rulings by O’Connor that generated a petition for certiorari to the Supreme Court was Turner v. City Council of Fredericksburg, Virginia, upholding a local ordinance that required city council prayers to be nondenominational. Writing for a panel of the U.S. Court of Appeals for the Fourth Circuit in 2008, O’Connor found that the prayers were government speech, not private, that there was no violation of the First Amendment Establishment Clause, and that the free speech and free exercise rights of a city council member were not violated. In 2009 the Supreme Court denied the petition, leaving O’Connor’s decision in place.

O’Connor, now 86, has also been engaged in the promotion of civic literacy through her own non-profit, iCivics, which promotes learning about civics with educational materials. Among the materials are video games that challenge students with different government positions or issues. One game, “Win the White House,” was recently featured in an article in The New York Times, which also reported that at a recent reunion of her former law clerks, O’Connor had everyone bring laptops so that the children in the group could play the civics video games.

O’Connor has been in the news from time to time, appearing on panels and at conferences. She has made it a personal crusade to oppose the large sums of campaign money being raised and spent in state judicial elections. And soon after Scalia died, O’Connor told local news media in Arizona that the Republicans in the Senate should not refuse to act on a nomination. “We need somebody there to do the job, and let’s get on with it,” she was quoted as saying. More recently, during the Supreme Court oral argument in the case of former Virginia governor Bob McDonnell, O’Connor came up inadvertently when McDonnell’s lawyer referred to Justice Ruth Bader Ginsburg as Justice O’Connor. It seems likely that that is as close as she will come to being back on the Court.

Souter retired in June 2009, abandoning life in Washington – which he never particularly enjoyed – to pursue his passion for his New Hampshire home. He was replaced by Justice Sonia Sotomayor. Now 76, Souter works in Concord, New Hampshire, but travels regularly to Boston to sit with the U.S. Court of Appeals for the First Circuit. According to electronic databases, he has sat on 295 cases and written ninety decisions.

Among Souter’s decisions, there have been seventeen that have generated petitions to the Supreme Court. In fourteen of those cases, the Court denied review. One petition is currently pending to be considered by the Justices at their June 9 Conference. In that case, D’Agostino v. Baker, Souter upheld a Massachusetts law that designates childcare providers who receive public vouchers as public employees for collective bargaining purposes; the providers argued that the law violates their free speech and association rights.

In two other cases, the Justices vacated Souter’s decision and sent the cases back to the First Circuit to reconsider in light of new Supreme Court precedents in other cases. In one of the two, Souter upheld a Worcester, Massachusetts, ordinance that restricted activity on median strips of public roads, prohibiting panhandling and demonstrating. Souter ruled in 2014 that the ordinance was content neutral and posed no free speech problem. But last June the Supreme Court returned the case of Thayer v. City of Worcester to the lower courts after the Justices broadened the definition of when rules require greater justification because they are content regulation, not content neutral, in its 2015 decision in Reed v. Town of Gilbert. The federal district court in Massachusetts then invalidated the ordinance last November.

Off the bench, Souter has generally maintained a much lower profile than O’Connor. He has stayed out of the limelight, generally declining invitations to speak, preferring to spend his spare time enjoying his vast collection of books. He delivered a commencement address at Harvard University in 2010 and wrote a recent tribute to Justice Stevens, but otherwise he has remained largely below the radar.

Stevens, now 96, has chosen not to sit on the federal courts of appeals since his retirement in June 2010; he was succeeded by Justice Elena Kagan. However, he has in many ways been the most visible of the retirees. Living in Florida, he has published two books: Five Chiefs: A Supreme Court Memoir in 2012, and Six Amendments: How and Why We Should Change the Constitution in 2014. He is a frequent speaker, most notable for his willingness to criticize Supreme Court decisions made by the colleagues he left behind.

Among targets of comments by Stevens are:

McCutcheon v. Federal Election Commission, decided in April 2014, striking down aggregate limits on campaign contributions during a two-year election cycle. In a speech in September 2014, Stevens complained that the Court didn’t grapple with the fact that Shaun McCutcheon asserted what Stevens called a nonexistent right to donate to candidates in states other than where he lived and voted.

Michigan v. Environmental Protection Agency, decided in June 2015, overturning an EPA rule regulating steam-generating electric plants. Stevens said in an August 2015 speech that the Court’s “mind-boggling” conclusion failed to give the proper deference to the federal agency.

Shelby County v. Holder, decided in June 2013, invalidating a key provision of the Voting Rights Act. Writing in The New York Review of Books in August 2013, Stevens said the Court failed to adequately assess the legacy of slavery and race discrimination on the unfair apportionment of representation prior to passage of the Voting Rights Act in 1965.

Citizens United v. Federal Election Commission, decided in January 2010 (while Stevens was still on the bench), ruling that corporations and unions have a First Amendment right to spend their own funds directly to support the election of political candidates. In a May 2012 speech in Arkansas, Stevens challenged the decision to open up campaign spending for candidates to non-voters, like corporations, and predicted the Court would have to confront how to distinguish foreign companies and other entities.

Stevens keeps an active speaking schedule. Just this month, he joined Kagan and Diane Wood, the Chief Judge of the Seventh Circuit, at a panel at that circuit’s annual Judicial Conference and then spoke two weeks later at the American Law Institute’s annual meeting in Washington, D.C.

With all of the activity by the three retirees, it is little wonder that they do not really have time for retirement.

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