Being on the Supreme Court must be odd. It may be the only job that allows you to open a newspaper and read about your impending death a few times per year. Remember all those fun stories four years ago? "This presidential election is very important because the winner will get to appoint at least one Supreme Court justice, since Rehnquist is obviously going to die soon."
A few weeks before the election, after the point at which the outcome was no longer in doubt, someone asked me what would be the first big event of an Obama presidency. I may not have the timing right, but my answer was and remains appointing a replacement for John Paul Stevens.** He's not on death's door, but most Court observers agree that the 88 year-old liberal has basically been hanging on like Rick Moranis in Spaceballs to deny George Bush the chance to replace him. It should come as no great suprise, given the President-elect and the ~58 Democrat Senate, if he announces his retirement in the next 9 months. His health is strong but I'll wager that he'll defer the "honor" of becoming only the second Justice to serve beyond age 90 (after O-Dub Holmes, and check out that 'stache!) in order to allow a unified Democratic government to appoint his successor.
To put his age in context, he loves telling the story about how he attended the legendary World Series game in which Babe Ruth supposedly called his homer. That was in 1932. Stevens was 12.
The idea that change in the Court can be predicted is ludicrous. Justices often retire with little warning (O'Connor and Byron White, for example) and of course deaths can happen unexpectedly – although prior to Rehnquist, the last Justice to die on the bench was Robert Jackson*** in 1954. That's pretty amazing given the ages of the people involved. Stevens aside, there are no "red flags" on the current Court. No terminal cases of cancer, no senile 84 year olds in the throes of heart disease. Scalia and Kennedy are 72. Thomas just turned 60. Breyer is 70, Souter 69. Alito and Roberts are in their 50s and likely with us for a couple decades at the least. The next oldest Justice beyond Stevens is Ruth Bader Ginsburg, age 75.
While Ginsburg is in fair health (her 1999 bout with ass cancer resulting in complete remission) the most logical course of action is for her to take one for the team and retire.
There seems to be no reason that RBG could not serve another 8-to-10 years. But it is unlikely that at any point in those 8-to-10 years the environment for appointing her replacement would be more to her liking than it is now. Being an extremely liberal person, Ginsburg likely understands that this is the best chance that she will ever get to be replaced by an ideological clone. What's the point? Couldn't she just stick around and achieve the same result? Yes. She could give the country 8 more years of RBG. Or she could retire, let Obama appoint a 49 year-old version of RBG, and allow that person to influence the Court for 30 years.
Court appointments are without a doubt the longest-lasting part of the presidential legacy. And since Reagan the Presidents have consciously tried to maximize it by appointing 45-50 year-olds to the Federal courts. Stevens was appointed by Gerald Ford. Ford left office 32 years ago. Has any other part of Ford's brief presidency influenced the country for three decades? Of course not. It's no accident that Roberts and Thomas were not yet 50 when appointed. And I do not expect that the value of younger appointees will escape Obama.
The new President is extraordinarily likely to have the chance to replace Stevens (and if he wins re-election it is essentially guaranteed). He is currently the Court's most liberal member, and therefore amenable to giving Obama that opportunity. Ginsburg is the second-most liberal Justice. Will she sacrifice a few years' worth of her own influence on the Court to ensure that a large Democratic majority gets to appoint her replacement? It would make sense. Retiring in the next 18-20 months would leave no doubt about the ideology of Ginsburg's successor. Beyond that would be rolling the dice. There is no guarantee that the Democratic Senate majority will hold beyond 2010 or that Obama will serve two terms. As much as I personally enjoy Ginsburg on the Court, I'd enjoy a 48 year-old version of her even more.
**For most of my teenage years I confused him with John Paul Jones, the bass player in Led Zeppelin.
***Jackson was the last Justice who didn't attend law school. Can you even imagine that in the hyper-politicized context of modern SC appointments?