I know exactly where I was when I first saw the headline of an ABC news story earlier this month that said, “White House Prepares for the Possibility of Two Supreme Court Vacancies.” I was in the San Francisco radio studio of Ronn Owens about to go on the air to talk about Justice Scalia, the Citizens United case and current term. Owens said the ABC story had just appeared on-line that February 4 morning and predicted the retirement subject would draw calls. “Two vacancies?” I said doubtfully. “Really?” As people who have since read the posting by longtime ABC producer Ariane de Vogue know, it said: “Court watchers believe two of the more liberal members of the court, justices John Paul Stevens and Ruth Bader Ginsburg, could decide to step aside for reasons of age and health.”
Ariane’s post became part of a new round of speculation among those of us who would rather be first, than second, third, or really left in the dust, on a retirement story but who simply do not know the full intentions of these older justices. Justice Ginsburg has told me and others that she does not want to leave the Court in the next couple of years, and seeing how vigorously she approaches the job, I cannot believe she is seriously thinking of retiring. Yet she has twice battled serious cancer and will turn 77 in March. I believe she is healthy but I don’t know for certain — and the Ginsburg rumor is still going.
As I have previously written in these posts, I think Justice Stevens will retire at the end of this term. The question for me is: When would he announce it? He will turn 90 on April 20, and oral arguments for the term will be over at the end of April. Maybe he would choose then to let President Obama know. Maybe he would wait until the end of the term in June, when retiring justices used to do it.
The opportunity of a lifetime appointment to the Supreme Court doesn’t come around often for presidents, or for the reporters who cover it. Nomination stories become such big deals to us that I can say without much exaggeration that since I began writing about the Court in 1989, I can remember almost every minute of the days that we got a retirement announcement. Here, going back about a quarter-century, is when retiring justices told us when they were going:
June 17, 1986: Chief Justice Warren Burger publicly revealed his retirement, effective at the end of that current term. Burger had privately told President Reagan three weeks earlier, on May 27, that he would step down.
June 26, 1987: Justice Lewis Powell announced his retirement on the last day of the annual term.
July 20, 1990: Justice William Brennan retired during a summer recess, after he had suffered a stroke.
June 27, 1991: Justice Thurgood Marshall announced his retirement on the last day of the term. At a news conference the next day, he answered a question about his health with memorable gruffness: “I’m getting old and falling apart.”
March 19, 1993: Justice Byron White wrote to President Clinton to let him know he would retire that summer. This was the earliest official notification in recent decades. White said he wanted Clinton to have plenty of time to choose his successor for the next term. (Clinton selected Ginsburg.)
April 6, 1994: Justice Harry Blackmun informed the White House he would retire at the end of the term.
July 1, 2005: A few days after the annual term ended, Justice Sandra Day sent a letter to President Bush saying she would retire. (I was finishing my manuscript of her biography at the time, and I really remember every moment of this astonishing day.) She said she needed to leave to care for her ailing husband but would not step down until her successor was named. It turned out she stayed on until January 2006, when Samuel Alito was sworn in.
September 3, 2005: Chief Justice William Rehnquist died in office, giving President Bush a second seat, along with O’Connor’s, to fill.
May 1, 2009: Justice David Souter sent a note to President Obama confirming that he was retiring, after news reports the previous night said Souter already had informally passed the word.