Justice Souter's Rebuke of the Bush Presidency and the Future of the Court

It is traditionally a courtesy of Supreme Court justices to retire during an administration of the same political party from which they were nominated. Perhaps George H.W. Bush's best decision of his presidency was nominating David Souter to replace retiring Associate Justice Brennan; and ever since David Souter ascended to the Supreme Court on October 9, 1990, he has wanted to leave. Although he loved his job, he hated Washington.

I suppose out of a sense of duty he decided to stay throughout the Clinton years, hoping at the end of the tunnel would be a reasonable Republican he could trust to relinquish his seat (e.g. a John McCain or Colin Powell). Obviously this is not what happened. As Justice Souter watched George W. Bush hijack the country he loves, it became increasingly apparent that to resign his seat would be the end of a moderate court. This became especially clear after Justice O'Connor's unsymmetrical replacement: Samuel A. Alito.

So Justice Souter's retirement is the political equivalent (although not as surprising) to Senator Arlen Specter's party change. It will not likely change the jurisprudential leanings of the court, but his decision to retire during the first year of Obama's presidency is an unmistakable rebuke of the Bush presidency.

Obama will likely have at least two other Supreme Court seats to fill before the end of his first term: Justice Ginsburg and Justice Stevens. Ginsburg and Stevens are the two oldest and two most liberal justices on the bench. Ginsburg has had some health issues recently. Her retirement many not be imminent, but my guess is she will not chance having her replacement be chosen by a Republican and will decide to retire between now and the next election. I have always assumed Stevens, the oldest member of the court by far, would wait until 2012 to announce retirement. He seems in relatively good health and waiting a few more years would not only make him the oldest Supreme Court Justice ever, but would also make him the longest serving Supreme Court Justice. But perhaps his age is catching up to him as his hiring of clerks was a little different this year (originally only hiring one). I now wouldn't be surprised if Stevens announces his retirement next spring, shortly after his 90^th birthday.

Again, neither of these would likely change the jurisprudential leanings of the court. A big win for the Obama administration would be the retirement of Justice Scalia or Justice Kennedy. Here's hoping...