An Illness Ties Up the Justices

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Schmidt, a former Earl Warren law clerk, notes pointedly, "Chief Justice Warren, as he was retiring, said several times he wanted to leave in good health to set an example for others to follow before their powers became impaired." But informing a failing Justice when to leave has always been a delicate matter. At the turn of the century, when one member of the court was designated to suggest resignation to the often befuddled octogenarian Stephen Field, the younger man eased into the subject by reminding him of a similar visit Field had once had to make to a senior Justice. "Yes!" cut in the cantankerous Field. "And a dirtier day's work I never did in my life!"

No one is suggesting that any of the current Justices are in their dotage. Byron White, 67, still plays a little basketball in the top-floor gym ("the highest court in the land"), while O'Connor goes there for aerobics. And everyone does a fair share of the mental exercise on the court. "There may be dreadfully reasoned or mistaken opinions," says William Van Alstyne of Duke University Law School, "but they can't be rationalized by the age of the Justices." Although most have complained about the heavy case load, there is little talk of retirement. "After all," quips University of Virginia Law Professor A.E. Dick Howard, "the job doesn't involve any heavy lifting." The most discussed possible resignation at the moment is inevitably that of Powell, 77. "He is not the kind of person who would allow this situation to go on indefinitely," Philip Kurland of the University of Chicago Law School says. "Unless he returns to full vigor, I expect his resignation at the end of the term."

As for the others 76 or older, Chief Justice Warren Burger, 77, has made clear his intention to preside over the U.S. Constitution's bicentennial celebration in 1987. Harry Blackmun, 76, keeps up an active schedule of public appearances and shows no sign that he is thinking about quitting. Court watchers have been noting for years that Thurgood Marshall, 76, is in poor physical shape, but he has remarked privately, "I was appointed for life and intend to serve out my term." William Brennan, who will be 79 in April, is the oldest of the Justices, but remains spry mentally and physically. Remarried in 1983, the Eisenhower appointee seems less limited by his years than his younger colleague William Rehnquist, 60, whose back problems send him home from the court many days by 3 p.m.

To change the balance on the court decisively, Ronald Reagan would have to name a replacement for Liberals Brennan or Marshall or sometime Liberals Blackmun or John Paul Stevens, seemingly in his prime at 64. During the 1984 campaign, both sides noted that the winner probably would join a short list of very fortunate Presidents--Washington, Jackson, Lincoln, Taft and Franklin Roosevelt--whom fate allowed to mold the court in their own images. For that reason, says Tribe, normally a critic of the Burger era, "I'm for mandatory life-support systems for the current court." But no such emergency intervention is necessary for the moment. The present high bench, with its fragile coalitions and its elderly Justices, seems set to go on, at least for the remainder of this term.