A PIONEER STEPS ASIDE

(Posted November 7, 2019) There was no fanfare; no significant public announcement. Instead, at the beginning of the final oral argument of last week’s October session of the Supreme Court, Chief Justice Don Lemons asked the appellant’s counsel to give him a moment. There, before what must have been a very small audience — few people outside the immediate litigants stick around for the last argument of the day — he announced that Senior Justice Liz Lacy has decided to end her tenure as a Senior Justice of the Court, and this would be her final time participating in a session of the full court

Justice Lacy is a true pioneer: Roughly ninety justices had occupied a seat on the court before she arrived, all of them men. She was our Sandra Day O’Connor, a mold-breaking justice who broke up what had been the exclusive province of male jurists.

In my experience, she always displayed a welcome demeanor. Her questions were tough but fair, and it was clear that she was asking not to make a clever point but genuinely to find out what a party’s position was. No advocate who appeared before her got the impression that she had treated that advocate with anything short of respect. I’ll miss her.

The chief justice’s announcement indicated the possibility that Justice Lacy may participate in an upcoming writ panel, presumably the one on December 3, but this would be her last merits docket. I infer that this means that her full retirement will take effect at the end of the year.

From a practical standpoint, this development leaves the Supreme Court with precious few senior members. The Code authorizes a maximum of five at any one time. With Justice Lacy’s withdrawal, that leaves the court with just three: Senior Justices Charles Russell, Lawrence Koontz, and Lee Millette. The court will feel that shortage most acutely during writ panels, when it divides into groups of three (with sometimes a fourth in one panel). Justice Russell usually winters in Florida, so for the coming cold-weather panels, it’ll require all hands on deck if the court will continue to split into three groups of three justices each.