The Roe v. Wade abortion decision was the topic of 35 separate questions posed by senators to chief justice nominee John Roberts at his confirmation hearing last week.
If you’re worried about whether the Supreme Court, with two new members soon joining it, will overturn Roe — or if you’re hoping the court will overturn Roe — here’s a name and number to keep in mind: John Paul Stevens, 85.
Even if President Bush’s two nominees to the high court — to replace Chief Justice William Rehnquist and Associate Justice Sandra Day O’Connor — were to vote to strike down Roe v. Wade, that would still leave a 5 to 4 majority to sustain Roe.
Barring a totally unexpected change of heart by any of the pro-Roe justices (Stevens, Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer), it would take Stevens’s departure from the court to open the way to toppling Roe.
Perhaps this battle is more symbolic than real. Georgetown University law professor Nina Pillard said Monday, "Nobody — including a Roberts court — is about to overrule Roe v. Wade."
But even the whiff of a possibility that Roe might be struck down has abortion rights activists rushing to their battle stations. And that is one reason why Stevens is so crucial.
The justice also plays a leading role in death penalty cases before the court. In 2002, he wrote the court's opinion in Atkins v. Virginia, in which the court ruled that the execution of a convicted murderer with an IQ score of 59 was unconstitutional. The mean score on the IQ test is 100.
Persuasion to retire
The chief justice has some tasks spelled out by statute, others by custom and tradition. The one task that wasn’t discussed during last week’s Roberts hearings was the role that chief justices have from time to time played in nudging an ailing justice into retirement.
At age 85, Stevens appears to be spry. During the court’s oral arguments last spring, his questions were, as usual, pertinent and posed with unfailing politeness.
Article Three of the Constitution says that judges and justices "shall hold their offices during good behavior," which has come to mean life tenure. There is no fixed age under federal law at which a justice must retire.
But old age and disability have been constant problems for the Supreme Court throughout its history, and they are likely to catch up sooner rather than later with Stevens, as well as with the other justices. The next oldest is Ruth Bader Ginsburg, at age 72.
That’s why the required reading list for Roberts, if the Senate votes to confirm him to be chief justice, should include a book called "Leaving the Bench" by David Atkinson, a political science and law professor at the University of Missouri in Kansas City.
Disability on the high court
Atkinson’s book is morbid but fascinating reading. He explains how each of the 108 justices up to 1999 came to retire or die while serving on the court. In several cases, a justice stayed on the court long after his mental or physical disability made it impossible for him to do his share of the court’s work.
And it has often been the chief justice who has taken on the delicate job of persuading the justice to step down.
In 1925, Chief Justice William Howard Taft gently pushed Justice Joseph McKenna off the bench. At age 81, McKenna had lost his mental acuity. The other eight justices agreed that, due to McKenna’s disability, no case would be decided because of his vote.
“Taft’s encouragement of McKenna’s resignation illustrates how effective procedural pressure exerted by a chief justice can be,” Atkinson says in his book. “With the concurrence of his colleagues, Taft was able to steer important opinions away from McKenna until he was able to persuade him to leave.”
In 1930, Chief Justice Charles Evan Hughes, speaking on behalf of his colleagues, visited 90-year old Justice Oliver Wendell Holmes to suggest that he retire. Hughes had checked first with Holmes’s closest friend on the court, Justice Louis Brandeis. Holmes immediately retired.
But it doesn’t always go so gracefully.
The defiant William O. Douglas
In 1975, after Justice William O. Douglas suffered a stroke, his colleagues decided not to hear cases in which Douglas would have been the tie-breaking vote.
“In one death penalty case, in the spring of 1975, the Court put the case over for re-argument after hearing oral argument,” said Douglas biographer, Prof. Bruce Murphy of Lafayette College. “Even then Douglas did not want to leave, and did not leave until the pain became too great in the fall of 1975.”
But in Douglas’s case it was not the chief who smoothed the justice’s retirement. “Douglas would not have listened to (Chef Justice Warren) Burger anyway, because the two did not get along at all and Douglas had little to no respect for him at the time,” Murphy said. Douglas's wife played a part in getting him to retire.
It could be politically tricky for a chief justice appointed by a conservative Republican president to try to persuade a Democratic-appointed justice or a liberal-leaning justice to retire.
But Atkinson said in an interview Tuesday that, “It’s easier for the chief justice to deal with the political sensitivity if the other members of the court don’t perceive him as an ideologue or as a strong politician partisan. And I don’t sense Roberts comes across as either.”
Atkinson added that no chief justice would approach an ailing justice to broach the topic of retirement unless the chief had first gotten the consensus of the rest of the justices.
Hope for recovery
Murphy said it is natural that a justice would be reluctant to give up his place on the high court.
“The reasons are very human: the ailing justice does not want to admit that their life will be ending, does not want to give up power, holds out hope that they will recover, does not want to tip the voting balance of the Court in another direction by leaving, and as an independent life-tenured member, does not have to retire until he or she chooses,” Murphy explained.
“I cannot imagine a scenario that any liberal justice on this Court would give up their seat at the new, if confirmed, Chief's prodding, because it would tip the ideological balance of the Court,” he added.
“And I doubt that the new chief, out of respect for his colleague, would ask. I expect that, as has happened now with Douglas and Rehnquist, that office would seek to hide the declining condition from the Chief and the other justices in the hopes that he or she could hold on, possibly recover, and at least hold the seat until the White House may change in their ideological favor.”