On hearing that Justice Ginsburg had undergone surgery for treatment of pancreatic cancer, I wrote my optimistic view that the Justice would recover and continue her service on the Court. The early discovery of the cancer (illustrated by the fact that she was a candidate for surgery), the apparent success of the procedure, and her fortitude (and that of her family) in similar circumstances, suggest that hers is the fortunate case in which a terrible disease can and will be defeated. General five-year survival rates for pancreatic cancer can make a general point in a newspaper but they don't actually say anything more about whether Justice Ginsburg in particular will recover in the circumstances of her own illness than the statistic that the Court grants one percent of all cert. petitions tells you about whether it will hear any particular case. Both suffer from the fallacy of extrapolating individual predictions from aggregate data derived from large numbers of highly distinct cases.

But the opportunities for unwarranted hype and hyperbole are far from exhausted by the surgery itself. Anyone would be significantly weakened by serious abdominal surgery, so we should equally resist the temptation to read anything into the fact that she may appear weakened when she returns to the bench in a couple of weeks.

It is the post-surgical pathology reports that will matter. The Justice's intuition is towards disclosure, as illustrated by her initial detailed statement and the fact that she authorized the Court's Public Information Office to report that she would return for its February sitting. That makes it likely (though of course not certain) that she will provide more information over the next ten days as she learns it herself. For that reason, I adhere to my view that we should "call off the RBG retirement watch."

That said, I don't think that it is too early to say that the fact of Justice Ginsburg's illness "“ including her anticipated recovery "“ may make a retirement more likely this summer. Here is why . . . .

My working assumption has been (and remains) that Justices Stevens and Souter will retire during this Presidency. I thought that would be true no matter whether John McCain or instead Barack Obama won the election. Importantly, that assumption is built on a thin foundation. Both seem to be thriving on the Court.

There is an actuarial term limit on everything we do, but Justice Stevens' age hasn't seemed to slow him a bit.

The conventional wisdom is that Justice Souter is ready to retire and return to New Hampshire, including because he has never particularly taken to Washington, D.C. Some of Justice Souter's former clerks hold that view. But we're not talking about quitting just any job. And I continue to believe that it has to be difficult for a Justice of the Supreme Court to sign and deliver a letter giving up that seat. Justice Souter in particular keeps his own counsel and I don't believe that anyone has reliable evidence that he has a present intention to retire.

Though some have noted that Justice Souter has yet to hire clerks for O.T. 2009, that is entirely ordinary "“ he generally hires between February and April. It's equally unreliable to infer from the fact that Justice Stevens has hired for O.T. 2009 that he definitely intends to stay. Justice Stevens makes clear to the applicants he interviews that he could decide to retire.

The facts that we know, and the caveats that go with them, suggest to me that it is likely that Justices Stevens and Souter will retire in the nearish future, but that there isn't sufficient reason to conclude that either has been working from a plan to retire this summer in particular.

 

I nonetheless do think that both of them will account for Justice Ginsburg's condition in their thinking about retirement. There are no rules on when a Justice must retire. But a practice has developed that is intended to further the interests of the Court. Justices tend to retire (a) in the run up to the summer recess (permitting confirmation hearings before the Court returns in the Fall), (b) in separate years (to avoid the complications of multiple Supreme Court confirmation hearings in a single summer), and (c) not in election years (to avoid the prospect that the confirmation will be obstructed in order to allow for a new President to make the appointment or a new Senate majority to obstruct or facilitate it). Put another way, Justices Stevens, Souter, and Ginsburg theoretically could all retire in the Fall of 2012, but their intuition will be to try to space things out. On that understanding, there are three summers available for retirements during this Presidency "“ 2009, 2010, and 2011.

Though precise accounts vary, it is understood that Justice O'Connor retired a year earlier than she otherwise was likely to because it seemed likely that Chief Justice Rehnquist would retire the following summer as a result of his thyroid cancer. A similar phenomenon may present itself here. The greater the odds that Justice Ginsburg will retire in 2010 or 2011, the greater the parallel incentive for Justice Stevens or Justice Souter to leave this summer.

Justice Ginsburg's illness could thus affect the retirement calendar by making a resignation by Justices Stevens or Souter significantly more likely this summer if two premises "“ one debatable and the other simply unknowable at this point "“ are true. The debatable premise is that Justice Stevens or Souter intends to retire in the next few years. The as-yet-unknowable premise is that Justice Ginsburg tells her colleagues that there is a significant chance that her cancer will recur, suggesting that she may retire later in the Presidency. That would mark a significant change from her clearly stated intention to remain on the Court for many more years and would indicate to Stevens and Souter that the best opportunity for a more orderly retirement would be this summer.

To emphasize the point, I don't think this is the most likely scenario. I expect and believe based on the available evidence that Justice Ginsburg will recover. I also don't believe that Justice Stevens or Souter will overreact to the news of her illness. Even if both are considering retiring, neither is rushing for the exits, and Justice Souter at the very least recognizes that he could easily continue to serve into the next Presidency. The most important consideration will be their own judgments about their desire to continue to serve. My only point is that the retirement decisions of the Justices are inevitably tied together to some extent.

 

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