Eminent Domain

In her post about the Hein oral argument, Jan Crawford Greenburg included an interesting observation. Here is what happened after the arguments ended...

As intense as the arguments were—and as fun as it was seeing Roberts in action—the real drama of the day occurred at the end of the argument. Typically, the justices rise from the bench, turn around and leave the courtroom for their chambers in very short order. Usually, spectators wait no more than a few seconds before the last justice disappears behind the red curtains. Then the court officers allow us all to file out of other exits at the front and sides of the courtroom. But today, we all were held in place for nearly a half a minute more –an eternity to a TV reporter--as Justice Ginsburg slowly collected her things and carefully left the courtroom. Justice Souter lingered behind at his chair, waiting to walk alongside her—almost as if he wanted to see if she needed assistance.

I've never had the pleasure of seeing an oral argument live, but I've heard the entrance/exit procedures described numerous times. Jan continues...

It was strikingly odd. I was standing next to Jim Vincini of Reuters, and we looked at each other with some alarm. No one could recall seeing Ginsburg in such slow motion, and it immediately begged the question of her health—which of course begs the question of whether any of the justices are going to be leaving the court anytime soon and give George W. Bush his third nomination. I have predicted with confidence that no one else will leave by design, and I've flatly rejected any suggestions that Justice Ginsburg was not at the top of her game physically. She'll be 74 next month, and she's active and social—and said to be recovered from her bout with cancer. People who don't know Justice Ginsburg always say she looks so slight, so frail. But that's Justice Ginsburg. She is slight. Even when she fell asleep during oral argument awhile back, I didn't read anything into it since she'd just returned from out of the country and could easily have been suffering from jet lag.

It's hard to read a lot into this simply because Justice Ginsburg was never exactly Heather Mitts. She's a small, thin, elderly woman. It's not outside the realm of belief that she'd have a hard time getting around sometimes. But this behavior was out of the norm enough to get the attention of two veteran Court reporters. Maybe we can read something into this.

I stand by my belief that no more Justices will choose to retire before the end of the Bush presidency. That leaves the door open for a Justice being forced to retire though. At some point, health and age problems can become too much that a Justice just has to step down. It can happen at an inopportune time, politically speaking. Douglas stepped down under Ford. Brennan and Marhsall stepped down under Bush 41. It has happened before, it can happen again.