Legal Commentary

Is the White House Preparing For Three Supreme Court Vacancies This Summer?

By Orin Kerr

A lot of press reports have speculated recently about the possibility that there will be two retirements at the Court in coming months. As best I can tell, no one who follows the Supreme Court closely actually thinks it is going to happen. But that doesn?t stop the speculation.

In that spirit, I?d like to up the ante. Instead of speculating that there may be two Supreme Court vacancies in coming months, I will henceforth speculate that there will be three vacancies in coming months. That?s right, not one, not two, but three vacancies.

What is my evidence that there are going to be three vacancies at the Supreme Court soon? I don?t have any. I just made it up. But since when does that stop people from speculating? The idea is so dramatic that it?s worth speculating just to speculate. So I therefore speculate: There might be three vacancies this summer. That?s right, three vacancies, all at the same time.

Pretty amazing to speculate about, isn?t it? Indeed, I expect to bask in the glory of being the one who introduced the idea of speculating about three vacancies for a while. Go ahead, send me all those in-bound links. Life will be pretty good ? that is, until some wiseass comes along and starts speculating about four vacancies. Then no one will remember my modest three-vacancy speculation. Four vacancies ? how ridiculous! Seriously, it?s much more likely that we?ll have three vacancies than four vacancies.

To be clear, I?m not saying three vacancies are definite. Or even that it?s likely. But it is in fact theoretically possible that there will be three vacancies at the Supreme Court this summer.

Full post as published by The Volokh Conspiracy on February 19, 2010 (boomark / email).