Virtually every Supreme Court observer is assuming that Chief Justice Rehnquist’s ongoing and apparently quite serious bout with thyroid cancer will result in his retirement at the end of the current Supreme Court term next month. But, of course, there has been no word on this from Rehnquist himself, or from anyone else at the Court.
However, the unofficial federal judiciary gossip site, Underneath Their Robes, reports that Justice O’Connor has to this point only hired three law clerks for next year (she is entitled to hire four). This is highly unusual – Justice O’Connor ordinarily completes her hiring quite early in the process, and as far as I know she has always hired four clerks.
What’s the connection? The site’s mysterious author, "Article III Groupie" (or "A3G") speculates that O’Connor is holding a spot open so that she can offer a job to one of the Chief’s three already-hired clerks (the Chief and Justice Stevens generally only hire three clerks). The Chief, as a retired Justice, would be entitled to only one law clerk (the other two presumably wouldn’t have trouble landing a nice job elsewhere, but a Supreme Court clerkship is a unique gig). And, as A3G notes, O’Connor and Rehnquist have been good friends for many years, so it makes some sense that she would be willing to accommodate him in this way.
Now, it’s possible that O’Connor doesn’t know that Rehnquist is retiring, but is holding a spot just in case. But that seems unlikely to me – if Rehnquist does not retire, then he would keep his three clerks, and O’Connor would be one short. She could undoubtedly find someone to come work for her even on very short notice, but I doubt that she wants to conduct business that way – at this point, everyone who was a serious contender for a Supreme Court clerkship either has their clerkship or has accepted some other fancy law job, so a last-minute hire would be chancy. I don’t think O’Connor would risk not being able to get a top-flight fourth clerk on the chance that Rehnquist might retire.
Why, you may ask, would Rehnquist have hired clerks at all if he intended to quit? Two answers. First, he may have completed the hiring before his illness got really bad. Second, and perhaps more importantly, if he did not hire law clerks on roughly the same schedule that he usually does, he would be effectively announcing that he was retiring, and of course he does not want to do that.
This is real inside baseball. But inside baseball may actually be quite a good indicator in these circumstances. Of course, it’s speculation as to why Justice O’Connor has hired only three clerks – and it’s also possible that A3G’s information is not accurate. But if the info is good, I can’t think of a better explanation.
It’s interesting if, for no other reason, it shows that O’Connor isn’t retiring just yet.