The New Yorker By Jeffrey Toobin February 13, 2019
No one tells a Supreme Court Justice when to retire. But there are currently two retirement dramas under way at the Court—one semi-public and the other semi-private—and they both have the potential to reshape the meaning of the Constitution for decades.
The public story is that of Ruth Bader Ginsburg, the Court’s senior liberal. Late last year, she fell and broke three ribs and, when she was being treated, doctors discovered that she had lung cancer, her third bout with cancer. She underwent surgery, apparently successfully, and the Court released word that she would need no further treatment. But, in January, she missed oral arguments for the first time in twenty-five years on the Court, and there is no guarantee that she will be there when the Justices next hear cases, on February 19th. Still, the retirement drama regarding Ginsburg is straightforward. She will hang on for as long as she can, in the hopes that a Democratic President will appoint her successor after the 2020 election.
The more complex drama involves Clarence Thomas, who is seventy years old and the longest-tenured Associate Justice on the Court. With fifty-three Republicans now in the Senate (and no filibusters allowed on Supreme Court nominations), President Trump would have a free hand in choosing a dream candidate for his conservative base if Thomas were to retire this year. The summer of 2019 would seem an ideal time to add a third younger conservative to the Court (along with Neil Gorsuch, who is fifty-one, and Brett Kavanaugh, who is fifty-four). It’s true that Mitch McConnell, the Senate Majority Leader, would likely violate his Merrick Garland rule and try to push through a nominee in 2020, an election year, but 2019 would be much easier to navigate. So, many conservatives are asking, why shouldn’t Thomas leave now?
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