SUPREME COURT NOTEBOOK: Justices staying put


staying put

By Mark Sherman

Associated Press

WASHINGTON (AP) -- For the first time since Barack Obama became president, spring at the Supreme Court is lacking the scent of change.

The past two years have brought the retirements of Justices David Souter and John Paul Stevens, both announced soon after the court finished hearing arguments for the term. The justices heard their last argument on Wednesday.

But this year, there has not been even a whimsical rumor of a departure. To the contrary, the court's oldest member, 78-year-old Justice Ruth Bader Ginsburg, repeatedly expresses her intention to serve four more years.

This year would seem to be the last chance for a justice to step down until after the 2012 presidential election. Retirements are rare in election years for several reasons, particularly because an incumbent president's opponents in the Senate, hoping their candidate is elected, are reluctant to act on something so important and lasting as a high court nomination.

A prominent law professor, Randall Kennedy of Harvard Law School, is hoping that Ginsburg reconsiders and that she is joined by Justice Stephen Breyer. Breyer said recently he has given no thought to retirement.

It's Kennedy's view that the two justices should take one for the team -- those who share their liberal-leaning judicial philosophy.

Kennedy fears that if Obama loses his re-election, chances are a Republican president would get to appoint their replacements.

"If Obama loses, they will have contributed to a disaster," Kennedy wrote in a piece posted on The New Republic website.

It does not always work out, but justices try to retire during the presidency of someone of similar political outlook, if not party affiliation. Most people who follow the court think it is no coincidence that Souter and Stevens, part of the court's liberal-leaning wing though they were Republican nominees, waited until a Democratic president replaced George W. Bush, a Republican.

By contrast, the older conservative justices, Antonin Scalia, 75, and Anthony Kennedy, 74, might be expected to try to stay on the bench until a Republican wins the White House.

Kennedy offered the experience of Justice Thurgood Marshall as a cautionary tale for Breyer and Ginsburg. In failing health, Marshall retired in 1991 and President George H.W. Bush chose the conservative Clarence Thomas to replace the liberal Marshall.

Kennedy, who was a law clerk to Marshall in the 1980s, noted that Marshall used to say he had agreed to a lifetime appointment and would serve out his term. Had he remained in office until his death, the court might look very different today because Marshall died four days after Democrat Bill Clinton became president.


With arguments done until October, the justices now devote themselves to churning out opinions in the 43 cases they have heard but not yet decided. They should have it all done by the end of June.

Among the outstanding cases are a challenge to the constitutionality of a California law that restricts the sale of violent video games to children, a dispute over a massive sex discrimination lawsuit on behalf of up to 1.6 million women who work for Wal-Mart Stores Inc., a climate change lawsuit filed by states against power plants that emit large quantities of carbon dioxide, a greenhouse gas, and the detention of a U.S. citizen with suspected terrorism ties but no evidence that he committed a crime.

The violent video games case is the oldest one yet to be decided; it was argued nearly six months ago in early November. Justices typically are assigned to write the majority opinion in at least one case for every month the court hears arguments. Justices Samuel Alito and Sonia Sotomayor are the only two who have not produced opinions for the court from November.

The idea that Alito could have the majority opinion in the video case is intriguing because he has been the most willing to uphold First Amendment restrictions on a court that has been reluctant to carve out exceptions to free speech guarantees.


When Justice Sonia Sotomayor visited Berkeley, Calif., in February, she stopped in for a meal at the renowned Chez Panisse and met its founder, Alice Waters.

The women agreed they'd try to meet again when Waters next found herself in Washington.

Well, Waters came to town this week for a food conference, but Sotomayor had a dilemma. The Supreme Court is known for many things, but its cuisine is not one of them.

Luckily, a friend of one of Sotomayor's law clerks is a budding chef who adheres to the principles that have helped make Waters so well-known --the use of organic, locally grown ingredients.

The visit was such a court event that Justices Anthony Kennedy and Stephen Breyer -- both California natives -- stopped by.

Published: Mon, May 2, 2011