Happy Easter! Today is also John Paul Stevens' 94th birthday. Only one other former Supreme Court justice lived past 94. Stanley Reed died at 95. Stevens just released a new book, evidence he is still capable of writing opinions and showing up for work frequently, so he could still be on the court, setting an almost unbreakable record for both age and longevity. (He retired in 2010, second in age and third in longevity.) Even if he were so ill he was missing the whole current session, or so senile they could no longer trust him to write an opinion or even vote based on clear thinking, it would be far from the first time the court has gone one or more years with an empty seat. Sandra Day O'Connor, now 84 is still active also, and probably could also be doing the job faithfully, working her way into the top 10 in career longevity. David Souter is almost reclusive, but there is no evidence he is any less capable of doing his job now at age 74 than when he retired in 2009. If all three were still there, the only vacancy in the past 20 years would have been at the 2005 death of Chief Justice William Rehnquist. Since the chief is considered first in seniority for court purposes, Breyer would still be last. Obviously it would be by far the oldest court ever,with seven justices over 70 and only one under 60. George W. Bush would have only the chief to advance his legacy. Obama would be more antsy for someone to leave than FDR in 1937. Republicans would be terrified that Obama,like FDR,might get five vacancies in two years. Is there a way to curb the uneven distribution of influence on this body? Setting a fixed limit on years of service or aged-based retirement would make the court more political than it already is. Any change would require a constitutional amendment. Here's a proposal that might be worth a try. The court must have one vacancy within three years, so if no vacancy occurs the senior associate justice (the chief justice being exempted)must retire at the end of the term in progress. Suppose this law had gone into effect in 1982, starting with the first vacancy thereafter. The first time it mattered would have been 1997. Stevens, 77 with 22 years on the court, would have been retired, giving Clinton his third appointee. In 2000 O'Connor would have been forced out after 19 years. The Republican Senate might have stalled Clinton's choice, waiting for the election. Bush would have started with a vacancy. It might have been Roberts, a good compromise to start his term. It might have been his friend Harriet Myers, easier to accept because the law makes individual appointments less important. It might have been Samuel Alito. That would give the Democrats early ammunition against him. By 2004 Rehnquist was terminally ill. He would probably have made a deal with Bush to elevate Antonin Scalia to chief to protect him from forced retirement. Scalia would have been replaced by a moderate (possibly Myers or Roberts but not Alito) and the election might have been more comfortable. In 2007 Anthony Kennedy would have been forced out at age 69 after 19 years, replaced by Alito or another conservative, giving them a clear 5-4 edge. Souter would have had the choice of retiring in 2009 or being forced out in 2010. If he retired in 2009 it would have been to force Clarence Thomas out in 2012, giving the liberals back their majority. Ruth Bader Ginsburg would then have the choice of retiring in 2013 (forcing Breyer out in 2016 when Obama might get a fourth appointee), 2014 (giving the next President two vacancies), or 2015. Would that arrangement appeal to anyone here?
