Legal News

Justice Ginsburg to 2021! And More Speculation on the Court . . .

By Ashby Jones

President-elect Barack Obama hasn’t been sworn in yet, and none of the nine Supreme Court justices have even hinted at stepping down from the bench. But that’s not stopping pundits both inside and outside the Beltway from engaging in a big game of who’s-the-next-to-go. (And frankly, we don’t blame them.)

Legal Times’s Tony Mauro has a nice piece this week on potential goings, as does ABC News’s Jan Crawford Greenburg. The conventional wisdom has long been that, with an Obama victory, members of the liberal wing of the Court — Justices Ginsburg, Breyer, Stevens and Souter — would soon thereafter hang up their robes.

Not so fast, says Mauro. “If anyone asks you, ‘When is she retiring?’ ” Ginsburg reportedly said at a law clerks’ reunion last June, “tell them I have a great role model in Justice [John Paul] Stevens, who is going strong at age 88.” Ginsburg, 75, would have to sit on the bench until 2021 to match Stevens’s tenure.

Speaking of Stevens, the Court’s only Ford appointee, if he has designs to step down, he hasn’t made them clear. Writes Mauro: “Stevens, too, still is sharp and agile at 88 and, according to former clerks, has made comments similar to Ginsburg’s about staying on the Court as long as he still enjoys writing his own opinions—which he clearly still does.”

In some ways, the strangest possible retirement would be Justice Souter’s. At 69, he’s still relatively young, by Court standards, has no known major health issues, and seems as intellectually vibrant as ever. But apparently — and this we didn’t know — he’s not a big fan of the nation’s capital. Writes Greenberg: “Souter leaves DC the second the Court adjourns for the summer to go home (literally, the second. He even has skipped the end-of-term lunch with his colleagues). And he doesn’t return until the very first conference in September.” Adds Mauro: “Friends portray him as eager to remain in New Hampshire year-round—and ready to leave, now that a liberal has been elected to succeed Bush.”

Some nice tidbits from the stories: Justices rarely step down in election years, for fear of having a vacancy become an election issue. You rarely see two justices step down during the same term, for fear of causing too much disruption. And, strangely, justices don’t always retire during the tenures of likeminded presidents (think Justice Thurgood Marshall and William Brennan, both of whom stepped down during the first Bush administration).

Full post as published by Law Blog - WSJ.com on November 11, 2008 (boomark / email).