Analysis: The Court in September
Just a little over ten weeks from now, the Supreme Court will gather for its initial closed-door conference at the start of a new Term. It now appears that Chief Justice William H. Rehnquist will be presiding. That, at least, is the prospect in the wake of his surprise announcement Thursday night (see post below) that he has no plans to retire.
What is not clear is whether the eight colleagues with whom he has been serving for more than a decade will all be on hand. Justice Sandra Day O’Connor has announced her retirement, but she made it conditional on the arrival at the Court of a replacement. There is no certainty, at this point, that the White House and Senate can complete the process of replacing her in time for that Court gathering on Monday, September 26. There has been much talk at both ends of Pennsylvania Avenue in Washington about the need to have O’Connor’s successor on hand for the new Term, but no one at this point can know how well the nomination and confirmation process will go once President Bush makes a selection.
Rehnquist appears to have enough confidence in the state of his health, and the treatment regime for his thyroid cancer, that he was ready to make a very firm declaration that he plans to stay. While he added that he would do so “as long as my health permits,” it hardly seems likely that before Thursday he was anticipating any need to retire over the Court’s summer break, which began two weeks ago. Although a number of prominent news commentators and legal advocates had been floating rumors that Rehnquist’s retirement was imminent, the Chief Justice had never given any indication that those predictions had any basis in fact. He dismissed them Thursday jnight as “unfounded rumors,” and said with some defiance: “I am not about to announce my retirement.”
For advocates with cases already granted review for the next Term, the apparent need now is to go on preparing as if the Court were going to continue functioning largely as it has in recent years. Rehnquist, if his health holds, will be decidedly in charge, and will continue to run oral argument and the private Conference with a strong hand. If anything, he now will want to demonstrate even more clearly that he is able to carry on.
It will be time enough for advocates to start modifying their anticipated presentations when they see what happens in the developing process of replacing O’Connor.
The possibility that Justice O’Connor’s replacement might be confirmed well after the beginning of the Term raises the following question: what would happen in cases next Term where O’Connor heard oral argument and voted in Conference but then was replaced mid-Term before the opinion was issued? Presumably O’Connor’s vote would not be counted, but would the new Justice vote, not having heard oral argument? And what if the vote were 4-4 otherwise ? Although there are prior examples of Justices’ retirement plans becoming effective only when the successor was confirmed and qualified (e.g. Justices Thurgood Marshall, Harry Blackmun), I can’t remember another instance when that happened mid-Term. (Chief Justice Warren did the same thing, but I think that Burger’s appointment did not become effective until the 68-69 term was completed.) I believe that Justice Powell’s retirement became effective immediately, and the Court had only 8 Justices until Justice Kennedy was confirmed.
Comment by Paul W. — July 15, 2005 @ 9:55 am
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Comment by J.W. — July 20, 2005 @ 9:47 am