The Subtleness of a Court Retirement

For another, on a closely divided court, as this one is, a different justice can make an enormous and all but irreparable difference. The Supreme Court may not follow the election returns in issuing rulings, but Supreme Court justices certainly do in making retirement plans.

The late Chief Justice William Rehnquist acknowledged as much in a 1999 interview with PBS' Charlie Rose. "That's not 100 percent true," Rehnquist said of whether justices mulling retirement are mindful about which party occupies the White House, "but it certainly is true in more cases than not, I would think."

Admitting so is a different matter. The court may be, and it may be perceived by the public as being, a political institution, but this is not the way justices prefer to see it. They care about maintaining their own legacy but also about preserving the integrity of the institution. So they worry, properly so, about any move that would add to the appearance of politicization. The trick is to consider the successor without overtly seeming to.

Thus, the short-sightedness of the insistent yelping for Ginsburg to step aside and make way for another liberal -- while a Democrat is still president, and, even more urgently, while Democrats retain control of the Senate. The louder the clamor for her departure, or Breyer's, or the next justice down the line, the more difficult -- the more unseemly it is -- for them to leave.

The latest was a birthday push from University of California at Irvine law school Dean Erwin Chemerinsky, who advised Ginsburg via the Los Angeles Times that "only by resigning this summer can she ensure that a Democratic president will be able to choose a successor who shares her views and values."

I don't think Ginsburg is inclined to go in any case; she seems to be having a grand time as the court's senior liberal. Stevens may have offered some cover, yet calls like this are all but guaranteed to backfire.

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Ruth Marcus' email address is ruthmarcus@washpost.com.