With crises at home (the economy) and abroad (pick your favorite, the War on Terror, the Middle East Conflict, etc.), no one has been paying much attention to the highest court in the land. Instead, for more than a year now, the focus for the media, the American people and even the world has been the two political branches of our federal government. The Supreme Retirement Game Begins

With crises at home (the economy) and abroad (pick your favorite, the War on Terror, the Middle East Conflict, etc.), no one has been paying much attention to the highest court in the land.  Instead, for more than a year now, the focus for the media, the American people and even the world has been the two political branches of our federal government.

After all, there were the Presidential and Congressional campaigns, then the 2008 elections, then the transition to power, then the Inauguration, then -- bypassing any post-electoral “honeymoon” -- the immediate dive into the political work that faced the new Democratic administration, which now controls both sides of Pennsylvania Avenue.

But attention returned to the Supreme Court of the United States last Thursday with the announcement that Justice Ruth Bader Ginsburg had undergone surgery for pancreatic cancer.  The news raised the question that flew under the radar during the long- and hard-fought presidential race: Not would a Supreme Court Justice retire, but how soon?

Indeed, that question understates the personnel changes -- that’s right, multiple retirements -- that are likely to occur at the Court, according to the Supreme Court press corps and High Court watchers.  That’s because while Justice Ginsburg’s apparently treatable early-stage cancer may (or may not) force her from the bench first, long ago expectations were that as many as three Justices would vacate their seats after the Oval Office changed hands.

In fact, nearly two years ago, in May 2007, leading Supreme Court litigator and SCOTUSblog founder Tom Goldstein predicted that the “next President … will have two appointments immediately (replacing [Justices] Stevens and Souter, and there is also a very substantial prospect that a Democrat would quickly be in a position to appoint a third (replacing [Justice] Ginsburg).”  Goldstein went on to emphasize that, “if a Democrat wins, there will be something of a race for the exits.”

Those predictions weren’t really rocket science, although they did -- and still do -- require being “in the know” about the High Court, its Justices, their health and their psychologies.  That being said, everyone who follows the Supreme Court and its Justices has to believe now it seems even more likely those predictions will come true.

First, there’s simply the matter of the actuarial tables at work.

Justice John Paul Stevens will turn 89 in a little more than two months. Justice Stevens is getting ever closer to breaking the mark for longest service on the Supreme Court -- currently held by Justice William O. Douglas (36 years and 209 days).  But not only is that achievement several years away (when Justice Stevens would be 92), Justice Stevens also has said “it's not something I attach any special importance to. … I’m not trying to set any records.”

In other words, if Justice Stevens feels no compulsion to set the record for serving longer than any other Justice, then at his advanced age, and with his predilection toward the left-wing of the High Court, it would make sense that he retire now when a Democratic President would appoint his replacement.

Second, for another Justice there’s the question of whether he really enjoys being on the Supreme Court, or its location in Washington, D.C.  Indeed, the rumor long associated with Justice David Souter is that he relishes neither his role as a Justice nor his living in our nation’s capital.  For instance, Goldstein wrote in his May 2007 post that Justice Souter “seems the most enthusiastic about leaving; he never embraced the job (or Washington, D.C.) as a lifetime commitment.”

This sentiment hasn’t seemed to diminish.  In fact, a story published in the Washington Post last Saturday reported that “[f]riends of Justice David H. Souter … have said he is weary of living in Washington and eager to return to the scholarly life he once led in New Hampshire.”  The fact that Justice Souter has not yet hired law clerks for the next Supreme Court term, which begins this next October, only furthers the speculation that he is ready and able to retire.  And, with Justice Souter likewise hailing from the left-wing of the High Court, when better to open up a vacancy than now so that a Democrat could fill the seat?

Finally, of course, there are the multiple reasons why Justice Ginsburg may think her retirement should come sooner rather than later.  She will turn 76 next month, is now battling cancer for a second time, and, like both Justices Stevens and Souter, would probably prefer a Democratic President to name her successor.

All of this leads to the far more interesting game, which is figuring out which justice will retire when.

As Goldstein pointed out in a new post this past Sunday: “There are no rules on when a Justice must retire.  But a practice has developed that is intended to further the interests of the Court.  Justices tend to retire (a) in the run up to the summer recess (permitting confirmation hearings before the Court returns in the Fall), (b) in separate years (to avoid the complications of multiple Supreme Court confirmation hearings in a single summer), and (c) not in election years (to avoid the prospect that the confirmation will be obstructed in order to allow for a new President to make the appointment or a new Senate majority to obstruct or facilitate it).”

Based on this logic, Goldstein notes that “there are three summers available for retirements during this Presidency -- 2009, 2010, and 2011.”  And, of course, Goldstein has predicted three Justices who desire to retire.

All of this will, and should, lead to some intrigue, especially after the revelations made public by ABC News Supreme Court correspondent Jan Crawford Greenburg in her best-selling book, “Supreme Conflict.”

Specifically, Greenburg reported that after conversations between former Chief Justice William Rehnquist and Justice Sandra Day O’Connor in June 2005, Justice O’Connor decided to retire immediately in order to avoid two simultaneous retirements when the former Chief Justice told her “I want to stay another year.”

At the time, the former Chief Justice was battling thyroid cancer, and Justice O’Connor had expected his retirement then, allowing her to stay and then retire a year later for her own personal reasons.  However, as Greenburg reported, when the former Chief Justice made clear his intention to remain, the “implication was clear: [Justice O’Connor] must retire now or be prepared to serve two more years.  Rehnquist was unilaterally deciding both of their fates.”

Who knows if these sorts of conversations have already begun or will occur between Justices Stevens, Ginsburg and Souter before the Supreme Court ends its term later this June.  But let the guessing game begin.

February 12, 2009
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