No Vacancy

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

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.”

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.

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.

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.

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.