THE SUPREME COURT

Watching For Supreme Surprises

Institutional penchants for privacy and drama mean there is rarely warning of big news.
Dahlia Lithwick
NEWSWEEK
From the magazine issue dated Apr 6, 2009

Washington is obsessed with the Supreme Court right now, scrutinizing every judicial cough and comment for hidden evidence of illness or retirement plans, in the manner of New Yorkers on the hunt for a rent-stabilized 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. Two weeks ago Ginsburg made headlines when she told a Boston audience that there hasn't been a court photo featuring a new justice in a while, "but surely we will soon." Yet more speculation is focused on Justice David Souter, 69, who 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 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 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 a normal public institution, retirements would be discussed openly at press conferences and 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 surprising the brethren as much as the masses. Just as the justices refuse to hint at which case they'll be handing down until the moment it is read from the bench, the quirky institutional penchants for privacy and drama mean there is rarely warning of big news until it happens.

Outsiders are always surprised to learn how little the justices communicate with one another in person. Through memos, yes. But casual face-to-face chats about intimate matters can be rare. In her 2007 book, "Supreme Conflict," Jan Crawford Greenburg wrote that 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, then retire 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 that year and warning "we don't need two vacancies" later on. Faced with the choice between either retiring that spring or potentially serving two more years, O'Connor opted 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" playing out between Souter, Stevens and Ginsburg this spring as they attempt to sort out their own preferences, then communicate with one another in polite, speculative code. It's also possible that the mystery and obfuscation, followed by a surprise announcement in June, contributes to the Confirmation Derangement Syndrome that explodes the instant a vacancy is announced.

This time the justices have actually been very forthcoming about their plans. Justice Ginsburg has offered nearly unprecedented detail regarding her cancer treatment and prognosis. Both she and Stevens have been as open as possible about sticking around, and neither seems likely to step aside unless they are forced to.

Stevens still plays tennis and golf religiously. He is said to be gunning to shatter a few court records, and 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 information, is gunning for her own inside-baseball record. She hopes to sit longer than Justice Louis Brandeis, who served until he was 82.

Neither Ginsburg nor Stevens shows any indication of slowing down on the bench, either. 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.

The 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 tremendously on the bench.

It's worth remembering here that all the likely suspects for retirement come from the court's reliably liberal wing. Which means President Obama will replace any of them with a like-minded reliably liberal centrist. 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 what is often characterized as the failure of capitalism, the composition of the federal judiciary is perhaps the last winning political issue for conservatives. That makes the chances of a quiet retirement and a quiet replacement negligible. Whoever it is that slips away from the court will guarantee at least a summer of national turmoil. No wonder they don't tell us their plans in advance.