That's the conclusion of Tom Goldstein, founder and padrone of SCOSTUSBLOG.com, one of the premier Supreme Court litigators in active practice -- he's argued 24 cases before the justices -- and arguably the most prescient high court analyst.
Goldstein tends to be included on lists: Congressional Quarterly named him one of the 50 most influential people in Washington; Legal Times named him one of the 90 greatest Washington lawyers of the past 30 years and one of the leading Washington appellate lawyers, and the Washingtonian named him one of the 30 best lawyers in Washington.
So any prediction by Goldstein has to be taken very seriously.
In the swashbuckling , devil-may-care style familiar to those who know him, Goldstein admits his prediction is speculation.
"The odds are good that Justice Ginsburg will retire in the third year of a second Obama term," he writes in SCOTUSBLOG. "That is only a presumption, and I doubt that the justice herself has made concrete plans. [Obama's] re-election itself is highly uncertain, and much can change in one's thinking over the next three years.
"Nonetheless, the justice has sent signals that correspond with a likely retirement at that time."
Ginsburg's retirement would have nothing to do with her two bouts of cancer, both of which she bested.
Instead, when asked about stepping down, Ginsburg has noted similarities of her court service with that of the first Jewish member of the high court, Justice Louis Brandeis,
Brandeis retired at age 82, Goldstein points out. Ginsburg will turn 82 in March 2015.
Pretty thin gruel on which to make a prediction, Goldstein concedes. But in a June 30, 2011, interview with USA Today, Ginsburg pretty much confirmed her intentions. Ginsburg "said she felt good and reiterated her vow to remain on the bench at least to match the tenure of Justice Louis Brandeis, who retired at age 82 in 1939, after almost 23 years," USA Today's Joan Biskupic reported. The justice said: "I'm going to stay as long as I can do the job. I probably will at least equal him. But you have to take it year by year."
At an event last February at George Washington University, Ginsburg said the same thing, The Hill reported.
"I was appointed at age 60, the same age that Louis Bidenz Brandeis was when he was appointed to the court. He stayed until he was 83 [actually 82]. So I do have a way to go," The Hill quoted her as saying.
Goldstein throws cold water on speculation Justice Stephen Breyer, a fellow liberal, will retire soon, despite advice that he should to give Obama a second appointment.
In "The Case for Early Retirement: Why Justices Ginsburg and Breyer should retire immediately" in the April 28, 2011, edition of The New Republic, Harvard professor Randall Kennedy said: "Justices Ruth Bader Ginsburg and Stephen Breyer should soon retire. That would be the responsible thing for them to do. ... Both are unlikely to be able to outlast a two-term Republican presidential administration, should one supersede the Obama administration following the 2012 election. What's more, both are, well, old: Ginsburg is now 78, the senior sitting justice. Breyer is 72."
As for Breyer's stepping down, "no one knows," Goldstein said. "But I think it is less likely. Justice Breyer is five years younger than Justice Ginsburg. If he were to leave the court, it would likely need to be 2014 at the age of 75 (to avoid two retirements in 2015). I think Justice Breyer probably thinks he has seven to 10 more years of service before retiring."
Breyer, an athletic bike rider, certainly shows no signs of slowing down. He and his wife just faced down a machete-wielding intruder in their Caribbean vacation home -- losing about $1,000 in the process -- so his nerves must still be pretty good.
Besides, if you sit in the Supreme Court and listen, Breyer often tries to bring the voice of reason and compromise to the ideological rancor that sometimes holds sway, relishing the role.
Goldstein said if Obama does get to name a successor to Ginsburg, it will be a woman jurist of color, and names a number of worthy candidates.
In contrast there has been very little speculation about the other elderly justices.
Justice Anthony Kennedy, who often joins with the conservatives, will be 76 in July. Peppery Justice Antonin Scalia, a conservative paladin, will be 76 next month. The rest, in their 50s and 60s, are practically teenagers in Supreme Court terms.
Speaking of Ginsburg's hero, Brandeis, he was the high court's historical champion of the constitutional right to privacy. Republican presidential candidate Rick Santorum, the former U.S. senator from Pennsylvania, has said repeatedly he does not believe there is such a right -- hence adults have no right to an abortion, contraception or bedroom hanky panky.
Just in case Goldstein is wrong about a second Obama term -- and he'd be the first to admit he could be -- would Ginsburg give up her seat if President Santorum had the right to fill it?
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