Reading the tea leaves of the Supreme Court's retirement prospects.

The law, lawyers, and the court.
March 28 2009 7:48 AM

No Vacancy

Reading the tea leaves of the Supreme Court's retirement prospects.

(Continued from Page 1)

Except, of course, this time around the justices have actually been very forthcoming about their plans. Justice Ginsburg has offered nearly unprecedented medical detail regarding her cancer treatment and prognosis. Both she and Stevens have been as open as possible about their hopes to stick around. Stevens insists he is not going anywhere. He still plays tennis and golf almost religiously. He is said to be gunning to shatter a few court records, and some court watchers predict he'll stay on until 2011, beating out William O. Douglas, who served 36 years and seven months, as well as surpassing Oliver Wendell Holmes as the oldest sitting justice. Ginsburg—who insists that her comment about a new court photo was misinterpreted as insider prognostication—is gunning for her own inside-baseball record. She hopes to stay on the bench longer than Justice Louis Brandeis, who served until he was 82. Which may well put the job of appointing Justice Ginsburg's successor squarely into the hands of President Meghan McCain in 2015.

Neither Ginsburg nor Stevens are showing any indication of slowing down on the bench, either. Anyone who watched oral argument in last week's campaign finance reform case saw the two of them at the very top of their game—elbowing their way into the action and roller skating through their complicated hypotheticals at perilously high speeds. I think we may want to take them at their word when they tell us they're not planning to go anyplace unless the celestial Court of Highest Appeals issues a differing opinion.

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This leaves Washington insiders to speculate and whisper about Souter, and he's not saying much of anything. He may not be enjoying his time in Washington, but, like his colleagues, he still shows signs of enjoying himself on the bench, lobotomy notwithstanding. As attractive as the prospect of a lifetime spent reading by a winter's fire might be, Souter still looks awfully engaged in the life of the law.

It's worth remembering that each of these likely suspects for retirement comes from the court's liberal wing. Which means President Obama will replace any of them with a like-minded liberal centrist, and the net effect on the court as a whole will probably be minimal. That might incline any of them to leave sooner rather than later, but not necessarily this June.

In light of the current economic crisis and the outcome of the last election, the composition of the federal judiciary is still seen as a winning issue on the right; perhaps the last winning issue that's left. If recent confirmation hearings are any indication, the makeup of the federal courts are a concern on which conservatives are, if anything, more determined and more focused than ever. That makes any chances of a quiet retirement and a quiet replacement at the Supreme Court negligible, even if the ultimate effect will actually be quite small. Whoever it is that sneaks away from the high court in the next year or two will initiate at least one summer of national political insanity. Which may also explain why the justices are holding on to their secrets more tightly than ever.

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