By Gabe Roth

The question on whether active justices should each have four law clerks — that can be a question for another time. (Short version: four is a fine number, though I do wish the justices had more ideological diversity in their chambers, so liberals didn’t just hire liberal clerks from liberal feeder judges, and conservatives didn’t just hire conservative clerks from conservative feeder judges, as is the norm.)

For now, I will wonder aloud about the value of retired justices continuing to hire law clerks.

This practice may have made sense when Justice O’Connor was traveling around the country in her quest to sit on cases in every circuit. But with Justices Breyer and Kennedy having, in total among them, participated in a single appellate court sitting (Jan. 2024 for Breyer in CA1) across a combined 11 year of retirement, why do they need staff (or the office space, for that matter)?

Sure, the single clerk they hire each year assists in other justices’ offices, but then SCOTUS or the Chief Justice should simply hire a roving clerk, and make “roving clerk” an official position.

Now if the active justices did what Fix the Court has called on them to do and created a robust ethics office where, quoting Justice Kagan, “highly respected judges with a great deal of experience [and] with a reputation for fairness” (and we imagine retired justices would be among them) could review ethics complaints against the nine and other related issues, then sure, give the retired justice slash SCOTUS judicial council member a clerk.

Otherwise, with Breyer and Kennedy doing little more these days than attending events and promoting their books, it seems unnecessary.

Agree? Disagree? Weigh in at info@fixthecourt.com