The Right Coast

July 23, 2005
Did Justice O'Connor foul up her resignation?
By Tom Smith

This is a hoot. And I did wonder about this, since it is similar to an issue that can come up in corporate law. Anyway, O'Connor's letter says that she retires effective upon the confirmation of a successor. However, that implies, does it not, that there is no vacancy until a successor is confirmed. But, the relevant law seems to say the President cannot nominate a Justice until there is a vacancy. This recalls the famous (to some) Idaho law which provided that if two trains approach each other on the same track, both trains must stop, and neither shall proceed until the other has passed.

The post suggests the right way to deal with this little mess, entirely of the Justice's making, and perhaps the final manifestation of her famous moderation (why just resign? That's so absolute, so extreme!), is to treat the condition she imposes on her resignation as a nullity. This apparently follows from a principle I had not heard of before, that being that Justices cannot conditionally resign. I wonder where that legal principle comes from? But whatever. It's certainly convenient to have it around, and if it is not really around, now is a good time to invent it. It would mean the O'Connor legacy would conclude ever so appropriately, with the invention of a new legal rule necessary to get out of a mess entirely of her own making. I certainly concur that the power to make up rules as one goes along is very useful if one has a tendency to get confused with the ones we already have. Maybe we should call it the O'Connor Doctrine. It might be useful to formalize this rule in some case. Perhaps the Supreme Court could sue itself, or Justice O'Connor, assuming it would have standing to do so, in order to determine whether a Justice may resign conditionally and if so, whether the rule that one may not, may be, at least for the time being, imposed on itself, or her, so as to get itself out of this mess.

It also raises the question, how many other of O'Connor's acts may be treated as nullities? I believe there are many important cases where hers was the deciding vote. Could some of those votes be revisited under the O'Connor Doctrine? (That being, recall, that we can revisit silly things done by Justice O'Connor if taking them seriously would lead to constitutional conundra.) This is too deep for me. Best left to our constitutional scholars.

NOT directly relevant, but I remember reading somewhere that O.W. Holmes did not resign from the Mass. Supreme Judicial Court until immediately after his swearing into the U.S. Supreme Court. He was a very careful man (in some ways).