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.

Supreme Court Justice Ruth Bader Ginsburg
Supreme Court Justice Ruth Bader Ginsburg

Court watchers can't take their eyes off the Supreme Court right now, obsessively scrutinizing every judicial cough or comment for hidden evidence of illness or depression or looming retirement plans—in the manner of wild-eyed New Yorkers on the hunt for a rent-controlled apartment. Attention largely centers on Justice John Paul Stevens, who turns 89 in three weeks, and Ruth Bader Ginsburg, just turned 76, who recently underwent surgery for pancreatic cancer. Only two weeks ago, Ginsburg made headlines again when she told a Boston audience the justices haven't posed for a court photo featuring a new justice in a while, "but surely we will soon." Even more speculation is focused on Justice David Souter, 69, who famously pines for a return to his New Hampshire home. Souter claims to have the world's best job in the world's worst city, and in a very rare public appearance last month, he described the beginning of each court's term as the start of a "sort of annual intellectual lobotomy."

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

It's hard to understand the inner workings of the Supreme Court unless you recognize that it operates along about the same principles as an Oscar Wilde play—all polished surfaces and good manners on the outside, roiling drama stuffed forcibly under the surface. If the court were any kind of normal public institution, retirements would be discussed openly at press conferences and also privately among the justices. But the justices seem to cling to the tradition of retirement as political jack-in-the-box—usually announced on the last day of the term and sometimes even surprising the brethren as much as the masses. The court loves its own stylized kinds of high drama. And just as the justices refuse to let us know in advance which case they will be handing down until the moment it's read from the bench, the institutional preference for privacy and drama means we rarely learn of big news until it's already happening.

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Outsiders are often surprised to learn how little the justices actually communicate with one another in person. Through memos, yes. But casual face-to-face chats about intimate matters can be rare at the court, and even when they do happen, they can tend toward the impersonal. In her 2007 book, Supreme Conflict, Jan Crawford Greenburg described how Sandra Day O'Connor was essentially forced off the court in 2005, because then-Chief Justice William Rehnquist did not want to step down, despite terminal thyroid cancer. O'Connor had hoped to serve one more term and then retire in 2006 to be with her husband, whose Alzheimer's disease was advancing. The chief kiboshed her plans, telling her that he, too, planned to stay on at the court and warning, "we don't need two vacancies." Faced with the choice between retiring that spring and potentially serving two more years, O'Connor felt pressed to step down. Indirection, triangulation, and Rehnquist's sudden death meant that within a few short months, the court had two vacancies after all.

One might well imagine a similar round of "After you, Alphonse-ing" playing out between Souter, Stevens, and Ginsburg this spring as they attempt to sort out their own preferences, while communicating with one another exclusively in polite, speculative code. Indeed it's very possible that all this judicial hush-hushery is what makes court watchers most anxious—which is why we over-read even the most benign comments as judicial hand signals.

I can't help but wonder whether all the mysteriousness and obfuscation, followed by a surprise announcement in late June, doesn't contribute to the widespread Confirmation Derangement Syndrome that explodes the instant a vacancy is announced. Americans might be less apt to overreact at news of court vacancies if there were warning signals that they were imminent. And perhaps at least some of the growing support for term limits for the justices and proposed mechanisms to remove them if they become infirm have come about because the public feels so completely cut out of this decision-making process and very much at the mercy of the justices' secret plans.