Tomorrow is expected to be an important day for the Supreme Court.
Chief Justice Rhenquist, cancer patient, my or may not announce his retirement. Not because of any lack of intellectual rigor, but because of his medical condition.
There has been speculation that Sandra Day O'Conner may also be contemplating retirement.
The issue and the permutations are too complicated to summarize. Watching and waiting gives plenty of time for pundits and spinmeisters to work their sticky webs. I prefer to wait patiently and see what unfolds, then start complaining or speculating. The last time I had this feeling was when Her Majesty's Royal Navy set sail for the Falklands. At a time when military maneuvers can be accomplished almost overnight, Britain staged an old-fashioned naval attack measured in days instead of minutes. There is something equally stately about what is happening with the Supreme Court.
There is no binding protocol on how a Justice quits, but there are some customs. With the understanding that this is not a firm prediction about the way Monday's events will go, here is one scenario that could play out that day.
The Justices will assemble behind the velvet curtains to the rear of the bench, a few minutes before 10, and shake hands all around. There may be some small talk, but the opinions of the day probably won't be mentioned -- unless someone exercises the rarely used option of calling back an opinion that is about ready to be announced. That is not likely. Almost certainly, no one in that intimate little gathering will be talking about the retirement question.
After the Court's Marshal annnounces the Justices, they will enter through the parted curtains, and take their seats. Rehnquist will announce that orders have been issued and will be released by the Clerk, and will then call on the junior Justice who has an opinion ready to announce. If normal practice prevails, the six opinions that are expected to be announced will be released by the Justices/authors in order of reverse seniority.
At that point on many decision days, the Court would admit some new members to its lawyers' bar, but that is not expected on Monday. Rehnquist will announce the end of the Term, and distribute the verbal thank yous. The Marshal will then rap the gavel, just off the bench to the right, and announce that the Court will stand in recess until the first Monday in October. The Justices will then leave the bench.
After that public session, the Court will hold a closed-door meeting, to deal with new pending cases that have not yet been acted upon. Those orders are likely to be announced the following morning, Tuesday, with the Court not in session.
Rehnquist would not have completed his duties for the Term until after the private session Monday.
If he is going to retire now, that would probably come in a simple statement released by the Court's public information office, probably after a short interval to allow the President to be notified first, perhaps by a hand-delivered letter. But that would not be likely until Monday afternoon, at the earliest. Rehnquist personally would not want to mix in his personal announcement with an official session of the Court.
If such an announcement does not come on Monday, that would not be conclusive proof that it would not happen later in the week, or some time over the summer. Rehnquist has kept his own counsel about what he may do, and even his colleagues do not seem to know.
The short piece of advice for the hordes waiting in the blogosphere and at the Court for an announcement on Monday is to wait patiently for something official; media speculation will not mean much.
Supreme Court Nomination Blog, a sub-blog of SCOTUS Blog. These are very smart people, not grinding axes as far as I can tell.