Chief Justice Roulette
Handicapping the Supreme Court shuffle.
Two weeks ago, on the day after the Republicans regained control of the Senate and the Senate Judiciary Committee, I took my seat as usual in the Supreme Court to hear oral argument in an odd little torts case. I wondered aloud to one of my colleagues in the press corps whether we should expect the announcement of a Chief Justice William H. Rehnquist retirement that morning.
"Nah," she whispered back, "he'll wait some decorous period. Give him two weeks."
The two weeks have passed and the chief still hasn't stepped down. But what pass, on the Supreme Court, for bookies—the pundits and courtwatchers—have stepped up to offer their predictions. In fact, the National Journal's Stuart Taylor Jr. even gives odds this week for every hypothetical retirement scenario he can think of. (Likelihood of Rehnquist retirement this summer: 60 percent; likelihood of Sandra Day O'Connor retirement this summer: 30 percent.) Similarly, this week has Tony Mauro, of Legal Times fame, speculating on the possibility of a Chief Justice Antonin Scalia. But before you race down to the sports book at the Cal Neva and bet away your Social Security earnings, it's worth recalling that there's a reason the word "scuttlebutt" has the word "butt" in it. No one knows any of this for sure, we're mostly making it up, and the doings of the high court are more shrouded in rumor, fabrication, and innuendo than any place other than seventh-period study hall.
Nevertheless, as thought-games go, there is nothing as amusing to a court watcher as trying to imagine what the Rehnquists, Scalias, and O'Connors are plotting, now that the time is as ripe as it will ever be for a Republican retirement and replacement on the Supreme Court. (Next term will be too late, as it will make things ugly in the presidential election.) There is no doubt, by the way, about what Justice John Paul Stevens, the court's most senior justice, at 82, is planning: He will outwait the Bush administration and enjoy himself doing so. Still a golfer, bridge player, and tennis player, Stevens doesn't aim to leave the court until and unless incapacity forces him to.
For Rehnquist and O'Connor, the story is different. Both have signaled, although subtly, that they were each waiting for a Republican administration to resign. Rehnquist—who is 78—famously told Charlie Rose last year that "traditionally, Republican appointees have tended to retire during Republican administrations." Now while this comment could portend nothing more than the observation that "traditionally, Republican appointees tend to wear burgundy loafers" might have, folks in the Supreme Court tea-leaf racket have tended to interpret this as his promise to depart the court when the conditions for replacement with a like-minded conservative were best.
Justice O'Connor, who is 72, has similarly been making noises that rhyme with "retire" for some time, although the also famous election-night 2000 suggestion that she'd step down if Bush gained office was made by O'Connor's husband, John, not her. The other piece of O'Connor gossip, since the days of Bush v. Gore, has been that she would rethink retiring if the chief justice's stripes were offered to her. With her now rock-solid position as the deciding vote in so many of the court's 5-4 decisions, O'Connor knows she is already the most powerful woman in the land. Whether she covets the title that goes with that power is unknowable. Certainly, if the most recent rumors are true and Bush wants to reward his far-right base with a more reliably conservative jurist as chief in exchange for delivering the midterm elections, then O'Connor will have to be sacrificed. She is too unpredictable; she famously voted to uphold Roe v. Wade and has shown herself to be soft in all sorts of cases where the Scalia-Thomas contingent have hewed to the far-right line.
If O'Connor were to be passed over for chief in favor of Scalia, she would also suffer the significant rankle that comes with some of his nasty-isms about her thinking over the years. Scalia has made it plain in his writings that he doesn't hold O'Connor's judicial logic in the highest regard. Whether she wants to lose rank to someone who often shows her all the professional tact and sensitivity of a Tasmanian devil is also an open question.
There seems to be no disagreement between any two court watchers that if there is only one retirement this summer, the vacant seat will go to Alberto Gonzales, who currently serves as White House Counsel. Bush has made no secret of the fact that he wants to be the man who appointed the first Hispanic American to the high court. Other names that float in the ether include the more reliably conservative Emilio Garza of the 5th Circuit Court of Appeals and Miguel Estrada, who is currently waiting to hear whether he's won a seat on the D.C. Circuit Court of Appeals. [Correction: Nov. 26, 2002: A shout-out to the fact-checking behemoth that is our Fray, specifically to ShilohGun, first to point out that I was mistaken in parroting the oft-repeated claim that President Bush wants to appoint the "first Hispanic justice" to the high court. There's already been one: Benjamin Nathan Cardozo, Associate Justice of the Supreme Court from 1932-1938. Cardozo—of Portuguese-Jewish descent—may well have been the first Hispanic justice, depending on who you consult; some Hispanic organizations classify Portuguese-Americans as Hispanic, and many others do not.]
But before any of us agrees that there is going to be a blowout confirmation hearing this summer, let's consider two things: Would Rehnquist or O'Connor, who are, respectively, the second most powerful man and the most powerful woman in the country right now, really give up their day jobs merely because the time is ripe for replacing them? What would they possibly achieve in return? Neither justice is a pushover, and all the Republican pressure in the world will not force either of them to retire before they're ready. Rehnquist earned his stripes, so to speak, through years of lonely dissents and contrarian positions. And O'Connor so enjoys being the sole holdout that she frequently writes elaborate concurring opinions in which no one else joins.
Consider, also, that these people do not exactly work coal miner's hours. The justices of the high court listen to arguments for 12 hours a month, six months a year—the functional equivalent of three days down a coal mine. The rest of their time is devoted to deciding which meager 80 cases they'll hear all year, how they'll vote, and writing opinions—for which a good deal of the research and drafting is done by law clerks who never sleep or eat. In sum, a Supreme Court justiceship is a dream job for anyone over the age of 80 or under the age of 7. How else could Clarence Thomas be both working full-time and writing his memoirs? Almost five years ago, my colleague David Plotz assessed the chief justice and tried to answer the speculation raging back then as to whether a Rehnquist retirement was imminent. His conclusion: Why would he possibly want to retire? "Every year he has less work to do. He's made sure of that. The efficient justice arrives at the court around 9 and leaves by 3—what other job in Washington has such sweet hours?"
Dahlia Lithwick writes about the courts and the law for Slate.
Illustration by Mark Alan Stamaty.