Baseless speculation

I read an interesting column in the Washington Times today about... well about Supreme Court nominations and other things. It's worth a read but I disagree with much of what the author has to say. He starts off by claiming--without literally making the claim--that he is privy to knowledge no one else has, namely that there are going to be two Supreme Court vacancies at the end of this term.

So, for starters, I take issue with the fact that our columnist Mr. Lindberg actually knows anything like this. He doesn't. He's speculating. Even the current SCOTUS law clerks don't know whether any of the current justices are planning to retire at the end of this term, and I'm fairly sure that Lindberg--who is no Linda Greenhouse and certainly has no special privilege with the sitting Justices--doesn't, either. To set himself up as having such knowledge is pretty cheap.

Lindberg is looking for a reason why Bush has been "adrift" lately, and being a Bush supporter I suppose he can be forgiven for doing so. I'd argue the administration is adrift because nothing they're doing seems to work right now. Since his re-election Bush has been a reverse King Midas: everything he touches turns to crap. In similar circumstances I think we'd all be pretty much adrift.

Anyway, Lindberg does not say who the second retirment he expects would be, but says the first will be (no surprise) Chief Justice Rehnquist. Lindberg then goes on to offer advice as to who to put forward for that seat. From a political perspective, I think his advice is wrong on both counts, but then right-wingers see the world differently from me.

Since Lindberg is just speculating here, I think I'll do the same. The following is a completely baseless speculation, which if it turns out to be true will of course not have been baseless at all but rather brilliant prescience on my part. Ahem.

Rehnquist will not retire from the bench at the end of this term as expected.

Why not? Well, Rehnquist's first full term on the Supreme Court was the 1972 term, during which Roe v. Wade was argued and decided. Rehnquist joined in a dissent to the Court's opinion with Justice Byron White; many court watchers believe Rehnquist has been waiting 33 years for a chance to overturn Roe.

Well, this week the Court granted cert (law latin for "agreed to review") a case that comes as close as any other case has to allowing for an overturn of Roe. At issue in Ayotte v. Planned Parenthood of New Hampshire is the power of states to enforce their own abortion laws. Many people probably don't know (I didn't) that the various abortion regulations passed in the last few years by states, such as parental notification and partial-birth bans, have not been enforced. As soon as these laws are passed, they are enjoined in court by pro-choice groups who claim they are unconstitutional on their face. In Ayotte, the Court will decide whether those prima facie claims are valid.

This will not actually overturn Roe. But should the Court decide that the laws are in fact enforceable, it will send a big signal to pro-life groups that the Court is ready to hear a challenge to Roe, and it won't take long for such a case to reach the Supreme Court. The players are already making plans for the day when this happens.

It is my belief that as long as Chief Justice Rehnquist is physically able to do so, he will stay on the Court to participate in the Ayotte decision. He may step down as soon as the Justices have reached a decision, or he may wait for the end of the session if his health allows it. But I imagine he really wants to hear this case, and he'll do so if he's able.

So, you heard it here first. And if I turn out to be wrong, hey, it's just baseless speculation. Tod Lindberg got paid big bucks for baseless speculation. Where's my money?