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A scenario for Monday
| 02:05 PM | Lyle Denniston | Comments (0) | TrackBack (1)

Amid layer upon layer of uncertainty, one thing seems reasonably predictable about the Supreme Court's public session on Monday, the last public sitting of the current Term. That is that the Court will formally recess for the summer without a word being said about any retirement, or retirements, from the Court. Too much, however, can be read into that, and should not be.

At the end of the session, some observers new to the Court and sitting in the audience -- filled with a sense of expectation -- might think something is up after the last opinion is announced Monday. At that point, Chief Justice William H. Rehnquist will begin a round of thank yous, primarily to the Court's staff for its work during the Term. That, however, very likely would not be a prelude to an announcement about his own plans.

There are several scenarios that may occur, but most of them reflect the traditional view of the Justices that the bench, itself, is not the place to announce a departure. A decision to end one's service is considered to be a highly personal, not an institutional, choice, so there is no action by the Court to be taken officially -- on the bench, or off of it. The only recent retirement announced from the bench was that of Justice Lewis F. Powell, Jr.; Chief Justice Rehnquist did announce that from the bench, presumably at Powell's request.

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.